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BR 



CASES DECIDED 



ON THE 



BRITISH NORTH AMERICA ACT. 1867 



CASES DECIDED 



ON THK 



BRITISH NORTH AMERICA ACT, 1867, 



w 



THE PRIVY COUNCIL, THE SUPREME COURT OF 
CANADA, AND THE PROVINCIAL COURTS. 



COLLECTED AND EDITEJ) BY 



JOHN R. CARTWRIGHT, OF OSGOODE HALL, ESQUIRE 

Barnster.at.Law, an., Law Cirri to the Ler,i.'ative A.senUy of Ontario. 



VOL. III. 



PRINTED BY WARWICK & SONS. 20 Ind 28 FRONT STREET WE^ 

1887. 



WEST. 



Entered according to Act of the Parliament of Canada, in the year 1887, by JoHX 
ROBISON Cabtwright, in the Office of the Minister of Agriculture. 






7:11^8 



TABLE OF CONTENTS. 



PREtACK .... 

Table of Casks Rkpohtkd in this Volume 

Table of Casks Containki, in this and the Preckoino Volumks 

Table of Casks Cited ... 

Cases Rkportkd ... 

''"" Xoll'o §^^^Tc7. ^'''''' '' ''■ ': ^^•-" -- po^^--^ 

Appendix II., Containing thk Old Constitutions of the Provinces 
"^"^er" a' ^°''^^'^'^« ™« Constitution of the United States of 
Table or Sections of the B. N. A. Act. 1867, Cited in this Volume 
Digest of Cases in this and the Preceding two Volumes 



PAGK. 

vii. 

ix. 

xi.-xvii. 

xviii.-xxiii. 

1-408 

409-444 

445-582 

583-599 
601, 602 
603-625 



PREFACE. 



The present volun e contains the reported cases in the Privy 
Council, the Supreme Court of Canada, and in the Courts of the 
Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in 
continuation of those previously published. 

The method of arrangement adopted in the former volumes has 
been retained. 

The head notes, with one or two exceptions have been revised or 
re- written. 

Where any part of a judgment is omitted the omission is marked 
by asterisks or otheiwise, the matters omitted being such only as 
do not relate to the constitutional points. Square brackets, thus [ ], 
shew that the words placed within them are introduced by the 
editor. 

The numbers inserted in the margin refer to the pages of the 
original reports. 

All quotations and references have, as far as possible, been verified 
and corrected. 

As the old Constitutions of the Provinces now forming the 
Dominion of Canada and the Constitution of the United States are 
occasionally referred to in the discussions arising on the B. N. A. 
Act, they have been printed at the end of this volume. 



August, 1887. 



TABLE OF CASES REPORTED 



IN THIS VOLUME. 



t 11 n ,, PAGE. 

Apollo Candle Company, 
Powell V 432 

Attorney-General of Ontario 
V. Me: . r I 

Attorney-General of Quebec 
V. Colonial Building and 
Investment Association. . 118 

Attorney-General for Quebec 
0. Reed jqq 



B 



Bate, Mousseau v 341 

Bell, Doyle v 297 

British Columbia Towing 
and Transportation Com- 
pany, Se well v 320,% 

Burah, Reg. v 499 



Chapleau, Molson v 3^0 

Clarke v. Union Fire Insur- 
ance Company 335 

Colonial Building and In- 
vestment Association, At- 
torney-General of Quebec 
V ijg 

Commercial Bank of Wind- 
sor. Town of Windsor v.. 377 



D 



I'-..OE. 



Davidson, Queddy River 

Driving Boom CoTiip;i tiy v. 243 
Doyle V. Bell 297 



G 



Gibson v. McDonald 319 

Grand Trunk Railway Com'- 

pany, Monkhouse v 289 

Griffith V. Rioux 348 



H 



Hodge V. Reg 144 



M 



McDonald, Gibson v. 319 

Mercer, Attorney-Generai of 

Ontario v j 

Molson V. Chapleau .....*' 360 
Monkhouse v. Grand Trunk 

Railway Company 289 

Mousseau v. Bate 341 

Murdoch v. Windsor and 

Annapolis Railway Com- 

Pa^y 368 



TABLE OF CASES REPORTED IN THIS VOLUME. 
P 



T, , , _ PAGE. 

I'attee, Reg. v 340,71 

Peek V. Shields 266 

Pillow, Ex parte 357 

Poulin V. Corporation o{ 

Quebec 230 

Powell V. Apollo Candle Com- 
pany 432 



Q 



Quebec (Corporation of), 
Pdulin i> 230 

Queddy River Driving Boom 
Company v. Davidson . . 243 



R 



Reed, Attorney-General for 

Quebec v *. 190 

, Ward V 405 

Reg. V. Burah [[[ 409 

, Hodge V 144 

V. Pattee 346,% 



PAOE. 



Rioux, Griffith v 348 



Sewell V. British Columbia 
Towing and Transporta- 
tion Company S20,n 

Shields, Peek v 266 

T 

The Thrasher Case 320, ti 

U 

Union Fire Insurance Com- 
pany, Clarke v 335 

W 

Wallace Huestis Grey Stone 

Company, Re 374 

Ward V. Reed 405 

Wetherell and Jones, Ee . . 315 
Windsor (Town of) v. Com- 
mercial Bank of Windsor. 377 
Windsor and Annapolis Rail- 
way, Re 3,s7 

Windsor and Annapolis Rail- 
way, Murdoch v 3(J8 



TABLE 



OF THE 



CASES CONTAINED IN THIS AND THE PRECEDIN(i 

TWO VOLUMES. 



Amer, Reg. V. ... 

Angers v. City of Montreal 

Ai)ollo Cfuidlo Conipjuiy, Powell i\ . 

Armstrong v. McCutchin 

Attorney-! Jenenil r. International Bridge 
Coni])any .... 

Attorney-(ieneral i\ Niagara Falls inter- 
national Bridge Co. 

Attorney-General c. Moroer 

Attorney-General for Quebec r. Queen 
'nsurance Co. ..... 

Attorney-General of Quebec, Colonial 
Building and Investment Associa- 
tion !'. ...... 

Attorney-General of Quebec *•. Reed 

B 

Bate, Mousseau o. . 
Bayley, Ganong i\ . 
Beard v. Steele ■ . . . . 

Belford, Hmiles v. . . . . . 

Bt'lisle, L'UnionSt. Jacques de Montrealr. 
Bell, Doyle v. ..... 

Bennett v. Pharmaceutical Association of 

Quebec . .... 

Bennett, Reg. e. . . ' 

Black, Dow v. ..... 

Blouin V. Coriwration of Quebec . 

Boardman, Reg. v. 

Bourgoin v. La Compagnie du Chemin de , 

Fer de Montreal, Ottawa et Occidental i 
Bradshaw, Reg. v. 

British Columbia Towing Co. v. Sewell . 
Bronie (Municit.ality of), Cooey v. . 
Burah, Reg. t>. 



. 42 Q. B. 391 , 
24 L. C. Jurist, 269 
10 App. Cas. 282 
2 Pugsley, 381 . 

> G Aj)p. Rep. 537 

I 20 Grant, 34 . 

8 App. Cas. 707. 

I 3 App. Cas. 1090 

> 9 App. Cas. 157. 
10 App. Cas. 141 



27 L. C. Jurist, 163 
1 Pugsley & Burbidg 
34 Q. B. 43 

I App. Rep. 43G. 
L. R. 6 P. C. 31 

II App. Rep. 326 

1 Dorion, 33G . 

1 O. R. 445 
L. R. G P. C. 272 
7 Q. L. R. 18 . 
30 Q. B. 553 

i 5 App. Cas. 381 

38 Q. B. 564 . 
4 Canada Law Times, 63 
21 L. C. Jurist, 182 
3 App. Cas. 889. 



324 



111 



I'AO E. 

i. 722 

ii. 336 

iii. l32 

ii. 494 

ii. 559 

i. 813 

iii. 1 

i. 117 

iii. 118 

iii. 1!»0 



iii. 341 

ii. 509 

i. G83 

i. 67G 

i. G3 

iii. 297 

ii. 250 

ii. 634 

i. 95 

ii. 3G8 

i, 67G 

i. 23;} 

ii. 602 
, 320, /(. 

ii. 886 
iii. 409 



Xll. 



TABLE OF CASES CONTAINED IN THIS 



Canada Central Railway Co., Jones v. . 
Chandler, Reg. v. ..... 

Chapleau, Molson v 

Chauveau, Cotfe i'. ; . . . . 
Church I'. Fenton 

Citizens' Insurance Co. r. Parsons . 

Clarke v. Union Fire Insurance Co. 

Cleveland (Municipality of) v. Muni- 
cipality of Melbourne and Brompton 
Gore ...... 

College of Physicians and Surgeons of 
Ontario, Reg. v. .... 

Colonial Building and Investment Associa- 
tion V, Attorney-General of Quebec 

Colonial Building and Investment Associa- 
tion, Loranger v. . . . , 

Commercial Bank of Windsor, Town of 
Windsor v. . . . 

Cooey V. Municipality of Brome 

Coote, Reg. r. . 

Cott^'s Case .... 

Cote I'. Chauveau . 

0. Watson 

Credit Valley Railway Co. v. Great 
Western Railway Co. 

Crombie v. Jackson . 

Gushing v. Dupuy . 



) 



46 Q. B. 250 . 
1 Hannay, 556 . 

6 Legal News, 222 . 

7 Q. L. R. 258 . 
28 C. P. 384 . 

45 L. T. N. S. 721 ; 7 App, 

Cas. 96 
10 Pr. Rep. 313 

4 Legal News, 277 . 

[ 44 Q. B. 564 . 
I 9 App. Cas. 157. 
[ 5 Legal News, 116 . 

i 3 Russell & Geldert, 420 

21 L. C. Jurist, 182 
L. R. 4 P. C. 599 
20 L. C. Jurist, 210 
7 Q. L. R. 258 
3 Q. L. R. 157 . 

[ 25 Grant, 507 . 

34 Q. B. 575 

5 App. Cas. 409 



PAGE. 

i. 777 

ii. 421 

iii. 360 

ii. 311 

■ 831 

i. 265 

iii. 335 

ii. 241 

i. 761 

iii. 118 

ii. 275 

iii. 377 

u. 385 

i. 57 

ii. 220 

ii. 311 

ii. 343 

i. 822 

i. 685 

i. 252 



D 



Dansereau, Ex parte 

Davidson, Queddy River Driving Boom Co, u 

De Grosbois, Willett v. . 

De St. Aubyn i'. Lafrance 

De Veber, In re , . . 

Diblee, Whittier v, . 

Dobie V. The Temporalities Board 

Dow V. Black .... 

Doyle V. Bell .... 

Dudman, Kinney v. 

Duncan, Ex parte . 

Dupuy, Cashing v. . 



. 19 T.. C. .lurist, 210 . 


ii. 


165 


m Co. V. 10 Can. S. C. R. 222. 


iii. 


243 


. 17 L. C. Jurist, 293 . 


■ ii. 


332 


. 8 Q. L. R. 190 . 


ii. 


392 


. 21 N. Brunswick Rep. 401 


. ii. 


552 


. 2 Pugsley, 243 . 


. ii. 


492 


• 7 App. Caa. 136. 


i. 


351 


. L. R. 6 P. C. 272 . 


i. 


95 


. 11 App. Rep. 326 . 


iii. 


297 


. 2 Russell & Chesley, 19 


ii. 


412 


. 16 L. C. Jurist, 188 . 


ii. 


297 


. 5 App. Cas. 409. 


i. 


252 



E 



Ellis, Ex parte 

European and North American Ry. Co. v. 

Thomas 

Evans i'. Hudon 



1 Pugsley & Burbidge, 693 ii. 527 

} 1 Pugsley, 42 . . . ii. 439 

22 L. C. Jurist, 268 . . ii. 346 



I 

'I 



AND THE PRECEDING TWO VOLUMES. 



P 



Farewell, The 
Fenton, Church v. . 
Foley, Reg. v. 
Frawley, Reg. v, . 
Frederictoii (City of) v. Reg. 



Ganong v. Bayley, .... 
Gibson v. McDonald 
Goodhue, lie • • . '. 

Grainger, Separate School Trustees of 

Belleville f. . . . 
Grand Trunk Ry. Co., Monkhouse v 
Great Western Ry. Co., Credit Vallev 

Ry. Co. V. . •' 

Green, Holman v. . 
Griffith, Page v. 

, Paige V. 

, Pope V. 

V. Rioux 



7 Q. L. R. 380 . 
28 C. P. 384 
Stevens' Digest, 381 
7 App. Rep. 246 
3 Can. S. C. R. 505 



• • • 

xni. 



PAGE. 

. ii. 378 
. i. 831 
. ii. 653,w 
. ii. 576 
. ii. 27 



G 



1 Pugsley & Burbidge, 324 

7 O. R. 401 . . 
19 Grant, 366 . 

[ 25 Grant, 570 . 

8 App. Rep. 637 
25 Grant, 507 . 

6 Can. S. C. R, 707 

17 L. C. Jurist, 302 

18 L. C. Jurist, 119 
16 L. C. Jurist, 169 
6 Legal News, 211 



ii. 509 

iii. 319 

i. 560 

i. 816 

iii. 28}> 

i. 822 

ii. 147 

ii. 308 

ii. 324 

ii. 291 

iii. 348 



Hasiilton (City of), Harris v. . 

Harris v. City of Hamilton 

Hart V. Corporation of the County of 

Missisquoi 
Hazleton, Valentine r. 
Hodge I'. Reg. 
Holman v. Green 
Holmes c. Temple 
Horner, Reg. v. 
Hudon, Evans v. 



• 44 Q. B. 641 . 

• 44 Q. B. 641 . 

I 3 Q. L. R. 170 . 

. Stevens' Digest, 1083 

• 9 App. Cas. 117 

. 6 Can. S. C. R. 707 . 

• 8 Q. L. R. 351 . 

. 2 Stephens' Digest, 460 

. 22 L. C. Jurist, 268 . 



n 



i. 756 

i. 756 

ii. 382 

. 495, n 
iii. 144 
ii. 147 
ii. 396 
ii. 317 
ii. 346 



Intern ATioxAL 
General v. 



Bridge Co., Attorney 



I 6 App. Rep. 



537 



11. 559 



Jackson, Crombie v. 
Johnston v. Poyntz . [ 
Jones V. Canada Central Ry. Co. 



34 Q. B. 575 . 

2 Russell & Geldert, 193 

46 Q. B. 250 . . 



1. 685 

ii. 416 

I- m 



Keefe v. McLennan 
King's (Justices of), Reg. 
Kinney r. Dudnian . 



2 RuBsell & Chesley, 5 . ii. 40<> 
2 Pugsley, 535 . . . ,{. 499 
2 Russell & Chesley, 19 . li 412 



*% 



XIV. 



TABLE OF CASES CONTAINED IN THIS 



La Compagnie du Cheiain de Fer de 
Mijutreal, Ottawa et Occidental, 
Bourgom c. . . . . . 

Lafrance, De St. Aubyn v. . . ' . 

Lake, Reg. r. . . . 

Landry, Tlieberge e. .... 

Liinglois, Valin v. . 

Lawrence, Reg. /•. . 

Lenoir r. Ritchie ..... 

Leprohon r. City of Ottawa 

Leveille, E.i- Fnrie . . . . . 

Loranger r. Colonial- Building and In- 
vestment Association 

L'UninnSt. Jaciiuesde Montreal r. Belisle 

M 

McAlmon '■. Pine ..... 

McClanaghan c. St. Anns Mutual Build- 
ing Society ..... 

McCutchin, Armstrong c ... 

McDonald, tiibson c. . . . . 

McDougall r. Montreal Wareliousing Co. 

Macdougall v. UniiMi NaA'igation Co. 

McGuii'e. Wilson c 

McLennan, Keefe r. 

McMillan. Reg. <• 

I-. Southwest Boom Co. . 

Maher c. Town of P(n'tland 

Mallette r. City of Montreal 

Melbourne and Brompton (iore (Muni- 
cipality of). Municipality of Cleve- 
land (■.....,, 

Mercer, Attorney (General c. . 

Merchants' Bank, Smith c. . 

•MisHisciuoi (Corporation of the C<junty 
of). Mart /• 

Molir, Reg. r. 

Molson c. Chapleau ... 

Monkhou.se »•. Grand TrunV- Ry. Co. 

Montreal (City ofi, Angers c. . 

, Mallette i\. 

Montreal, Ottawa et Occidental, Bourgohi r 

.Montreal Warehousing Co., Royal Cana- 
dian Ins. Co. )-. .... 

, McDougall c. 

Mousseau c Bate ..... 

Murdocli I'. Windsor & .\nnapolis Ry. Co. 

N 



1 



5 Apj). Cas. 381 



PAtiE. 



8 Q. L. R. 190 . 
43 Q. B. 515 . 

2 App. Cas. 102. 
5 Ap]>. Cas. 115 
43 Q. B. 164 . 

3 Can. S. C. R. 575 . 
2 App. Rep. 622 

2 Stephens' Digest, 445 

> 5 Legal News, 1 Ki . 
L. R. P. C. 31 



i. 


233 


. ii. 


392 


. ii. 


610 


. ii. 


1 


i. 


15« 


i. 


742 


i. 


488 


i. 


592 


. ii. 


349 


. ii. 


27.-. 


i. 


6:5 






2 Pugsley, 44 . 
j 24 L. C. Jurist, 102 

2 Pugsley, .381 . 

7 ( ). R. 401 

3 Legal News, 64 
21 L. C. .Jurist, 03 
2 0. R. 118 
2 Russell it Chesley, 5. 

2 Pugsley, 110 . 

1 Pugsley it' Buibidge 715 
Times of July 18, 1874 . 
24 L. O. Jurist, 203 

( 4 Legal News, 277 

8 App. Cas. 707. 
28 (Jrant 029 

I 3 Q. L. R. 170 . 

7 Q. L. R. 183 . 
Legal News, 222 

8 Apj). Rep. 037 
24 L. C. Jurist, 259 
24 L. C. Jui'ist, 203 

5 App. Cas. 381 

► 3 Legal News, 155 

3 Legal News, 04 
27 L. C. Jurist, 153 
Russell's Ecpiity Rep. 137 



NiACJAKA Falls International Bridge Co,, ) on n i. nt 
Attorney-General... . ^. ;} 20 Grant, 34 . 

Noel c. Corporation of the County of ) , t^ ooo 

Riclnnond . . . . . P ^""""' '^^ ' 

Normand c, St. Lawrence Navigation Co. 5 Q. L. R. 215 . 



ii. 487 

ii. 2X 

ii. 494 

iii. 319 

ii. .300. n 

ii. 228 

ii. 665 

ii. 40<1 

ii. 489 

ii. 542 

ii. 480, *- 

ii. 340 

ii. 241 

iii. 1 

i. 828 

ii. 382 

ii. 257 

iii. 300 

iii. 289 

ii. 335 

ii. 340 

i. 233 

ii. 301 

ii. 306, II 

iii. 341 

iii. 308 



i. 813 

ii. 240 
ii. 231 



AND THE PRECEDING TWO VOLUMES. 



XV. 



Okillia (Village of), Slaviu r. 
O'Rourke, Reg. c. . 
Ottawa (City of), Leprohon c, 



Page c. Griffith 
Paige >: Griffith 
Papin, Ex parte 



M ( 

||H Piirsons, The Citizens Insurance Co. v. . < 



The Queen Insurance Co. 



Pattee, Reg. c. . . ' . 

Peek, Shields v. .... , 

Pharmaceutical Associati(jn of Quebec, 

Bennett r. ..... 

Picton, The 

Pillow, Ex parte ..... 

Pine, McAlmon c. . . . . 

Poitras r. Corporation of Quebec 

Pope r. Griffith ..... 

Portland (Town of), Mahei v. . 

Pouliu r. Corporation of Quebec 

Powell r. Apollo Candle Co. 

Poyntz, .lohnston »•. .... 

Prince Edward (License Conxinissioners 

of) c. County of Prince Edward 
Prittie, Reg. r. 





PAGE. 


36 Q. B. 159 . 


i. 688 


1 0. R. 464 .. . 


ii. 644 


2 App. Rep. 522 


i. 592 


17 L. C. Jurist, 302 . 


ii. 308 


18 L. C. Jurist, 119 . 


ii. 324 


15 L. C. Jurist, 334 . 


ii. 320 


16 L. C. Jurist, 319 . 


ii. 322 


45 L. T. N. S. 721 ; 7 App. 




Cas. 90 


i. 265 


45 L. T. N. S. 721 ; 7 App. 




Cas. 96 


i. 265 


5 Pr. Rep. ^92 . 


iii. 346, /, 


6 App. Rep. 639 


iii. 266 


IDorion, 336 . 


ii. 250 


4 Can. S. C. R. 648 . 


. i. 557 


27 L. 0. Jurist, 216 . 


iii. 357 


2 Pugsley, 44 . 


. ii. 487 


9 Revue Legale, 531 . 


ii. 376, /- 


16 L. C. Jurist, 169 . 


. ii. 291 


Times of July 18, 1874 


ii. 486, n 


9 Can. S. C. R. 185 . 


. iii. 230 


10 App. Cas. 282 


. iii. 432 


2 Russell & Geldert, 193 


. ii. 416 


26 Grant, 452 . 


ii. 678 


42 Q. B. 612 . 


. ii. 606 



Q 



(Quebec (Corporation of), Blouin r. 

, Poitras r. 

, Poulin *'. 

Queddy River Driving Boom Co. 

Davidson .... 

Queen Insurance Co., Attorney-General 

for Quebec r. . 

Queen Insurance Co. c. Parsons 



. 7 Q. L. R. 18 . 

. 9 Revue Legale, 531 . 

. 9 Can. S. C. R. 185 . 

■• j 10 Can. S. C. R 222 

J3 App. Cas. 1090 

i 45L.T. N.S,721; 7 App. 
\ Cas. 96 



ii. 368 

ii. 376, )b 

iii. 230 

iii. 243 
, i. 117 

i. 265 



R 



Reed, Attorney-General of Quebec i 


-. .10 App. Cas. 141 


. iii. 1!K) 


, Ward f. 


. 22 N. Brunswick 


Rep. 279. iii. 405 


Reg. V. Anier 


. 42Q. B.391 


. i. 722 


i\ Bennett 


. 1 0. R. 445 


. ii. 634 


('. Boardman 


. .30Q. B.553 . 


. i. 676 


I'. Bradshaw 


. 38 Q. B. 564 


. ii. 602 


>'. Burah 


. 3 App. Cas. 889. 


. iii. 409 


r. Chandler 


. 1 Hannay, 556 . 


. ii, 421 



XVI. 



TABLE OF CASES CONTAINED IN THIS 



1 I 







PAGE. 


Reg. V. City of Fredericton 


. 3 Can, S. C. R. 605 . 


ii. 27 


V. College of Physicians and Surgeons \ 44 q B 564 

of Ontario . . . . J ^' ' 


i. 761 


V. Coote . 


. L. R. 4P.C. 599 


i. 67 


V, Foley . 


. Stevens' Digest, 381 . 


. ii. 663, n 


— — V. Frawley 


. 7 App. Rep. 246 


. ii. 676 


, Hodge V. 


. 9 App. Cas.117. 


. iii. 144 


V. Homer. 


. 2 Stephens' Digest, 450 


. ii. 317 


— — V. Justices of King's. 


, 2Pugsley, 535 


. ii. 499 


r. Lake 


. 43 Q. B. 515 . 


ii. 616 


V. Lawrence 


. 43Q. B. 164 . 


. i. 742 


— — V. McMillan 


. 2Pug8ley, 110 . 


ii. 489 


■ V. Mohr 


. 7 Q. L. B. 183 . 


. ii. 257 


V. O'Rourke 


. 1 0. R. 464 


ii. 644 


V, Pattee 


. 5 Pr. Rep. 292 . 


iii. 346, n 


■ V. Prittie 


. 42 Q. B. 612 . 


. ii. 616 


■ V. Reno etal . 


. 4 Pr. Rep. 281 . 


i. 810 


— V. Robertson . 


. 6 Can. S. C. R. 52 . 


. ii. 65 


V. Roddy 


. 41 Q. B. 291 . 


i. 709 


, Russell V. 


j 46L.T. N.S.889; 7 App 
• \ Cas. 829 . 


ii. 12 


, Severn v. 


. 2 Can. S. C. R. 70 . 


i. 414 


Renaud, Ex parte . 


. 1 Pugsley, 273 . 


ii. 445 


Reno et al., Reg. v. 


. 4 Pr. Rep. 281 . 


i. 810 


Richmond (Corporation of the 
Noel V. . . , 


C°""^y«f'hDorion,333 . . 

* * ' ) 


ii. 246 


Rioux, Griffith v. . 


. 6 Legal News, 211 . 


iii. 348 


Ritchie, Lenoir v. . 


. 3Can.S. C. R. 675 . 


i. 488 


Robertson, Reg. v. . 


. 6 Can. S. C. R. 52 . 


. ii. 05 


Roddy, Reg. v. 


. 41 Q. B. 291 . 


i. 709 


Ross V. Torrance 


. 2 Legal News, 186 . 


ii. 352 


Royal Canadian Insurance Co. 
Warehousing Co. 


^'•^""^^^-^^j 3 Legal News, 155 . 


ii. 361 


Russell r. Reg. . 


'546L. T. N. S.889; 7 App 
• ) Cas. 829 . 


ii. 12 



s 



St. Ann's Mutual Building Society, Mc- 

Clanaghan v. . 
St. Lawrence Navigation Co., Normand v. 
Separate School Trustees of Belleville v. 

Grainger ...... 

Severn r. Heg. . . . . . 

Sewell r. British Columbia Towing Co. . 

Shields, Peck ?>. 

Slaviu V. Village of Orillia 

Smiles r. Belford 

Smith, Exports . . . , . 

)'. The Merchants' Bank 

Southwest Boom Co., McMillan v. . 
Squier, Be ..... , 

Steele, Beard v 

Suite, Corporation of Three Rivers v. 



y 



24 L. C. Jurist, 162 , 


. ii. 237 




5 Q. L. R. 215 


. ii. 231 




25 Grant, 570 . 


. i. 816 




2 Can. S. C. R. 70 . 


. i. 414 




4 Canada Tiaw Times, 


53 . iii. 320,)(, 




6 App. Rep. 639 


. iii. 266 




36 Q. B. 159 . 


. i. 688 




1 App. Rep. 436 


. i. 576 




16 L. C. Jurist, 140 . 


. ii. 330 




28 Grant, 629 . 


. i. 828 


ir^ 


1 Pugsley & Burbidge 


715 ii. 542 


■'.v| 


46 Q. B. 474 


. i. 789 


;>ra 


34Q.B.43 


. i. 683 




5 Legal News, 330 . 


. ii. 280 


i-a^ 



iK-y 



PAGE. 


ii 


27 


i 


761 


i 


57 


ii. 653,»i 


ii. 


576 


iii 


.144 


ii. 


317 


ii. 


499 


ii. 


616 


i. 


742 


ii. 


489 


ii. 


267 


ii. 


644 


iii. 346, n 


ii. 


616 


i. 


810 


ii. 


65 


i. 


709 


ii. 


12 


i. 


414 


ii. 


445 


i. 


810 


ii. 


246 


iii. 


348 


i. 


488 


ii. 


(55 


i. 


709 


ii. 


352 



ii. 361 



ii. 12 



'4 

■.:-,■! 



AND THE PRECEDING TWO VOLUMES. 



Temple, Holme.s r. . 8 Q L Ii 'ihl 

Temporalities Board, D.. bio ,-. . ." 7 App. "Cas." i3(;' 

Iheberge r. J.andry . . . y App. Cas. 102 

Thomas, European and North American / , ,, , 

Ry. Co. ('. . ( i I "galey, 42 . 

TJirasher Case, The ...'*" 
Tliree Rivers (Corporation of) r. Suite 
Toronto Harbour Commissioners, lie 
Torrance, Ross r. . 



4 Canada Law Times, 53 

5 Legal News, 330 . 
28 Grant, 195 . 
2 Le^al News, 186 . 



u 



Union Fire Insurance Co., Clarke r. 
l-nkm Navigation Co., Macdougall t: 



Valentine v. Hazleton 
Valin ('. Langlois 



w 



Wallace Huestis Grey Stone Co. , Re. 
Ward V. Reed . . . 

Watson, Cotfe c 

Western Counties Ry. Co. c. Windsor 

Annapolis Ry. Co. . 
Wetherell & Jones, ]{e 
Whittier r. Diblee ..." 
Willett V. De Grosbois . 
Wilson c. McGuire .... 
Windsor (Town of) v. Commercial Bank 

Windsor ..... 
Windsor & Annapolis Ry. Co., Re. 

— , Murdoch r. 

, Western Counties Ry. c. . 

Worms, Expitrtc .... 



S:} 



of 



} 



10 Pr. Rep. 313 
21 L. C. Jurist, 63 



Stevens' Digest, 1083. 
5 App. Cas. 115. 



Russell's Equity Rep. 461 , 
22 N. Brunswick Ken. 279 

3 Q. L. R. 157 . 

7 App. Cas. 178. 

4 O. R. 713 
2 Pugjley, 243 . 
17 L. C. Jurist, 293 . 

2 O. R. 118 

3 Russell & Geldert, 420 

4 Russell & Geldert, 312 
Russell's Equity Rep. 137 
7 App. Cas. 178. 
22 L. (;. Jurist, 109 , 



XVll. 



1 


'A(iE. 


n. 


396 


1. 


351 


11. 


1 


ii. 


439 


iii. 320, Jt 


u. 


2S0 


1. 


825 


n. 


352 


iii. 


335 


u. 


228 



. ii. 495, u 


i 


158 


. iii. 


374 


). iii. 


405 


. ii. 


343 


i. 


397 


iii. 


315 


ii. 


492 


ii. 


332 


ii. 


665 


. iii. 


377 


. iii. 


387 


. iii. 


368 


i. 


397 


ii. 


315 



i. 816 

i. 414 
ii. 320,/<, 

iii. 266 
i. 688 
i. 576 

ii. 330 
i. 828 

ii. 542 
i. 789 
i. 683 

ii. 280 



8« 



i ^1 



TABLE OF CASES CITED. 



Alexanhra Case .... 

Amer, R. r 

Apollo Candle Co., I'owell r. 
ArkellandTheCcjrporationot'St.Thoiuas,/) 
Atchesoii V. Everitt .... 
Attorney - General r. Black 

— r. KiJhler 

('. Middleniiss 

c. Radloff 

I'. Sillem 

of Ontario r. Mtroer 

/'. Niagara 

Bridge Co 
of Quebec r. Attorney- 
General of Dominion . 



2 H. & C. 431 . 
42 U. C. Q. B. 391 

10 A pp. Gas. 282 
r.;38 U. (J. Q. B. 594 

1 Cowp. 382 
Stuart's Rep. 324 

9 H. L. C. 654 . 

19 T<. C. Jurist, 253 

10 Ex. 84 . 

2 H. i& C. 431 . 

5 Can. S. C. R. 538 

20 Grant, 34 . 



P.\uE. 

182 
332 
180 
242 
302 
113 
114 
3f!l 
174 
182 
301 

342 



2Q. L. R.230. 3,41,87,90,91,97 



B 

Bank r. Supervisors .... 

of Commerce r. New York City 

Tax Case ..... 

Barto I'. Himrod .... 

Bateman's Trust, lit. n 

Baxter, Bradley v 

Belisle, L' Union St. Jacijues r. 

Bennett, R. r, ..... 
Black, Attorney-General v. 

, Dow r. . 

Blackbird Creek Marsh Co., Wilson r. 

Blake, Church r 

Blmiin v. Quebec .... 
Board of Wardens of Port of Philadeli)hia 

Cooley V 

Boardman, R. c 

Bourgoin r. Montreal, etc., Ry. Co. 
Bradley c. Baxter .... 
BrodieandTheTownof Bowmanville, //( 
Brooke, Mayor of Colchester i'. 
Bunter v. Coke .... 

Burah, R. r 

Burgess r. Wheate .... 



7 Wallace, 26 . 

2 Black, 620 

2 Wallace, 200 . 

4 Seldon, 483 

L. R. 15Eq.355 

15 Barb. 122 

L. R. 6 P. C. 31. 

1 O. R. 445 
Stuart's Rep. 324 
L. R. 6 P. C. 272 

2 Peters, 245 . 

2 Q. L. R. 236 3, 41 
7 Q. L. R. 18 . 

\ 12 Howard, 299 

30 U. C. Q. B. 553 

5 App. Cas. 381 . 

16 Barb. 122 . 
38 U. C. Q. B. 580 
7 Q. B. 339 

1 Salkeld, 237 . 

3 App. Cas. 889 146, 

182, 188, 189. 252, 
1 Eden, 227 ; 1 W. Bl. 



379 
380 
380 
419 
114 
419 
139, 248, 307 

392, 400 
320 
113 

307, 399 

249 

87, 90, 91, 97 

148, 234 

264 

174 
400 
419 
242 
248 
20 

148, 167, 170 

839, 436, 440 

123 3,19,91 

93, 97, 98 



XX. 



lAliLE OF (jASKS CITKI). 







Chamlkstox (Council of), Weston r. 
Chau'lifere ( cold Mining (Jo. v. Desbarats 
Churci? c. Blake 
,' Middlemiss 



Citizens' Ins. Co. v. Parsons 

Coke, Bunter i'. 

Cclcheater (Mayor, etc.), i\ Hio 
Combermere, Dickson i\ . 
Connnonalty of Sadlers 
Commonwealth, National Bank 

Parker v. 

Connecticut River Lumber Co., 
Cooley t*. Board of Wardens 
Craig i'. Kline . 
Cramer, Thorne v. 
Cross ?). De Valle 
Curtis, Scripture r. . 

Cushing r. Dupuy 



)ke . 



Harrigan 



I 



HAUK. 

2 Pfters, 44U . 380 

L. R. 6 P. C. 277 120, 129, 141 

2 Q. L. R. 230 3, 41, H7, 90, 91, 97 
21 L. C. Jurist, 319 . . 301 
7 App. Cas. 90 120, 126, 127, 137 

140, 143, 147, 157, IGO, 187, 222 
252. 307, 340, 398. 

1 Salkeld, 237 . . . 20 

7 Q. B. 339 .. . 248 

3 F. it: F. 527 . . 3C1 

4 Hej). 541. ... 98 
9 Wallace, 353 . . 3H1 
() Barr, 507. . . . 419 
129 Mass. 580 . . 249 
12 Howard, 299 . 2(54 

05 Penn. 399 . 2()4 
15 Barb. 112 . 419 

I Wallace, 1 ... 110 

II U. C. C. P. 345 97 



5 App. Cas. 409 



247,2.-)2,270, 273 
288 



Dancey, McKenzie >■ 

De La Vega c. Vianna .... 

De Valle, Cross c. . . . . . 

Denison, United Stjites v. . . . 

Desbarats, Chaudifsre Gold Mining Co. >: 

Desdelens i\ Commissioners i>f Erie County 

Dickson c. Combermere . 

Dobie V. Temporalities Boai-d 

Doe d. Hayne i'. Redfern . 

Dow V. Black . 

Doyle I). Falconer 

Dupuy, Cushing v. . 

Dyke v. VValford 



1 B. it Ad. '284 . 

1 Wallace, 1 

2 Ch. Ch. 176 . 
L. R. 5 P. C. 277 
1() Peters, 443 . 

3 F. & F. 527 

7 App. Cas. 136 . 
12 East, 90 
L. R. 6 P. C. 272 
L. R. 1 P. C. 328 
j 5 App. Cas. 409 . 



/ 



5 Moore, P. C. 434 



334 
280 
112 

316 

120, 129, 141 

380 

361 

149, 178 

. 92, 98 

307, 399 

419 

•247, 252, 270 

277, 288 

15, 59, 109 



E 



EASTON'.sCase 

Elston, Board of Commissioners r. . 
Erie County (Commissioners of), Desdelens !•. 
Everitt, Atcheson v. .... 

Eyre, Phillips v. .... . 



12 A. it E. 645 . 
2 American Rep. 327 
16 Peters, 443 . 
1 Cowp. 382 
L. R. 6 Q. B. 20 



147 

381 
380 
302 
339 



Fai-coner, Doyle r. . 
Feda Hossein's Petition 
Fraser Case 



L. R. 1 P. C. 328 
Ind. L. R. 1 Calc. 431 
1 Q. L. R. 177 . 



419 

417 

51 



TAItLK OF CASES CITKD. 



X\1. 



Fniwloy, Jl. i. . 
Fruiloricton (City of), r. R. 



PAOK. 

7 Ai)p. llep. 240. . 147, Hi'i 

•A Can. S. C. R. 505 148, 187, 2;il' 

23:J, 252, 204, 352, 354 

3 P. & B. 139 . . . 204 



a 



flARKKTT (". Roberts 

Gibb, Original lliitlupool Collierios Co. 
Gibbons r. Ogdoii .... 
Gidley r. Palinorwtoii. 

Gilbert, Jonas <• 

Goodhue, lie 



10 App. Rep. 050 
5 Ch. D. 712 
9 Wheaton, 1 
3 15. it B. 275 . 
5 Can. S. C. 11.350 
19 Grant, 30() . 



300 
248 
249 
301 
140 
338 



H 

Hai.dimanI), Miicbeatli r. . . .IT. 11. 172 

Harridan r. Coiniectieut River Lumber Co. 129 Mass. 580 

Hart *•. County of Missisijuoi . .3 Q. L. R. 180 

Hayne (Doe d.), c. Redfern ... 12 East, 90 

Himrod, Barto v .4 Seldon, 483 

IT 1 o I 9 App. Cas. 117 

Hodge t'. R i 

Hole i\ Sittingbourne & Sheerncss Ry. Co. H. & N. 488 
HLghes, Plumb v 29 U. 0. C. P. 261 



3(51 
249 

354 

. 92, 98 

419 

189,305-307,339 

430, 441 

248 

310 



Jonah c. Gilbert 



5 Can. S. C. H. 350 



140 



Keefe r.Maclennan 
Kimball, County of Mobile 
King's (Justices of), R. r. 
Kline, Craig c. . 
Kohler, Attorney-General < 



. 2 R. & C. 5 


148 


. 12 Otto, 091 


24i> 


. 2 Pugsley, 535 


148, 235, 237, 352 


. 05 Penn. 399 


204 


. 9 H. L. C. 054 


114 



Landry, Th^erge v. 
Langlois, Valin c 



Lenoir i\ Ritchie .... 

Leprohon r. Ottawa . . . . . 

License Cases ...... 

L' Union St. Jacques de Montreal v. Belisle 



. 2 App. Cas. 102 
. / 5 App. Cas. 116 

I 304, 

. \ 3 Can. S. C. R. 1 

. 3 Can. S. C. R. 575 
. 2 App. Rep. 522 
5 Howard, 504 
L. R. P. C. 31 



M 



Macbeath v. Haldimaiul 
Maclennan, Keefe v. 



1 T. R. 172 

2 R. & C. 5 



3, 41, 49, 338 

208,271,272,301 

W5, 307, 318, 321 

187, 280, 288 

308,310 

. 50, 322 

187, 380 

204 

248,307,392,400 



301 

148 



XX 11. 



TAHF.K OF CASKS (."ITKI). 



MAryland, Mc('ulluch /'. , 
Meiiros, 11. r. . . . , . 
Mercor c, Atturiioy (»uiienil 
Moichaiits' Bank, Smith c 
MiddlomiHH, Attoniey-Goiieml r. 

, Church I'. . . . 

Middlotou V. Spicer . . ' . 
Missicquoi (County of), Hart c 
Mobile (County of), r. Kimball . 

Mohr, R. (' 

M(jutgoinory County (Board of Conimia 

sioiiors of), Elstun c. . 
Montreal, Ottawa it Occidental Ry. Co. 

Bourgoin c. . . . . 
Murdoch i\ Windsor it Annapolis Ry. Co 



4 \Vheaton, 31fi . 
14 R. it R. 10(J . 
f» Can. S. C. R. 538 
28 (Jrant, ti2!> . 
]}> L. C. Jurist, 253 
21 L. C. Jurist, 31!> 
1 Brown, C. C. 201 
3 Q. L. R. 170 . 
12 Otto, (»91 
7 Q. L. R. 183 . 

• 2 American Rep. 327 

■ 5 App. Cas. 381 . 
Russell's E<iuity Rop, 









u 




■,■/_. 


I'AOK. 


380, 381, 385 


'J: 


416 


jisk 


361 


m 


271 


^■r 


361 




361 


M 


. 19,97 


1 


354 


;W 


249 




140 




381 




400 




137 . 387 





M(;Claxa(}HAN c. St. Ann's Mutual 
McCulloch r. Maryhuid 
McGuire, V. Jsou r. . 
McKcnzie *'. Dancey . 
McMillan />. South- West Boom Co, 



Mc 



24 L. C. Jurist, 162 
4 Wheaton, 31t) . 
2 O. R. 118 

i P. it B. 716 ." 



139 

38U, 381, 385 

. 320-322 

334 
.243,262 



N 

National Bank i-. Commonwealth . 
Now York City, Bank of (Jomnierco c 
Niagara Bridge Co., Atty.-Gen. of Ontario c. 

Niagara Election Case . . . . 

Nugent, Weymouth c. . . . . 



9 Wallace, 353 . 
2 Black, 620 
20 Grant, 34 
29 U. C. C. P. 261 

6 B. & S. 22 . 



381 
380 
342 
268, 272, 311 
316-318 
114 





OfiDKN, Gibbons c . 


. 9 Wheaton, 1 . . . 249 




C igiual Hartlepool Collieries Co. /• 


Gibb. oCh. D. 712 . 248 




Orillia (Village of), Slavin <•. 


. 36 U. C. Q. B. 159 . .148,242 




; O'Rourke, R. r. . . . 


. 1 0. U. 464 .. . 149 
. 32 U. C. C. P. 402 . . 318 

. 9 Wheaton, 738 . . 380 




[ Osborn r. United States Bank . 




t Ottawa (Corporation of), Leprohon 


. 2 App. Rep. 522 . .187, 380 




1 

1 


p ' 




Palmerstox, Gidley >: 


. 3 B. & B. 275 . . 361 




Parker c. Commonwealth . 


. 6 Barr. 507 .. . 419 




) 


(7 App. Cas. 96 . .120, 126, 127 
. \ 137, 140, 143, 147, 157, 160, 187 




t Parsons, Citizens Ins. Co. v. 




1 


[ 222, 252, 307, 340, 398 




it , Queen Ins. Co. r. 


. 7 App. Cas. 96 . . 248 




1 Peak V. Shields .... 


. 8 Can. S. C. R. 579 . 308 




■ Phillips V. Eyre. 


. L. R. 6 Q. B. 20 339 

-1 



TABLE OF CASES (!1TED. 



XXlll. 



10, 381, 385 
416 
361 
271 
361 
361 
19,97 
354 
249 
140 

381 



17 



400 

387 



139 

W, 381, 3«r) 

. 320-322 

334 

.243,2(52 



381 
380 
342 
|()8,272, 311 
31C-318 
114 



249 
248 

148, 242 
149 
318 
380 

187, 380 



361 

419 

126, 127 

r, 160, 187 

r, 340, 398 

248 

308 

339 



Pluiiil) r. Hughes 

Poulin »'. Corporation of Quebec 

Powell r. Apollo Caiullo Co. 



QuBBK(' (Corporation of), Blouin r. 
, Poulin i: 



Q 



29 \j. 0. C. P. 261 

9 Can. S. C. R. IHo 

10 App. CftH. 282 



7 Q. L. R. 18 . 
9 Can. S. C. R. 185 



App. Cas. low .11>7. 



Queen Ins. Co., Atty.-Gon. for Quebec *•. | 'gjQ 211 214 215, 220, 
1'. Parsons . .7 App. Cas. 96 . 



Radloff, Atty.-Gen. v. 
Redfcrn, Doe d. Hayno < 
Reay, R. v. 
Reg. ('. Amer . 

V. Bennett. 

I'. Boardnian 

V. Burah . 



r. Frawloy. 

Fredericton (City of) v. 



Hodge r. . 

r. .Justices of King's 

r. Moares . 

V. Mohr 

t'. O'Rourke 



c. Russell . 

V. Reay 
Severn v. . 



w Taylor . 

Ritchie, Lenoir o. 
Roberts, Garrett v. 

Russell c. R. 



PA(iK. 

316 

.353,359 
189 



148 
.353, 359 
199, 203 
221, 229 

248 



10 Ex. 84 . 174 

12 East, 96. . . . 92, 98 
7 Bomb. H. C. R. Cr. Ca. 77. 417 
42 U. C. Q. B. 391 . . 332 
1 O. R. 445 .. . 320 
30 U. C. Q. B. 553 . . 174 
3 App. Cas. 889 . .146, 148, 167 
170, 182, 188, 189, 252, 339, 436, 440 
7 App. Rep. 246 . . .147,163 
3 Can. S. C. R. 506 . .148, 187 
232, 233, 262, 352, 364 



3 P. & B. 139 

9 App. Ciis. 117 



264 
189, 305-307 
339, 436, 441 
148, 237, 362 
416 
140 
149 
318 
6, 144, 146 



2 ['ugsley, 535 . 

14 R. iV R. 

7 Q. L. R. 183 . 

1 O. R. 464 
32 U. C. C. P. 402 
7 App. Cas. 829 . 

147, 158, 160, 232, 233, 252, 292 

307, 354, 436 

7 Bomb. H. C. R. Cr. Ca. 77. 417 

2 Can. S. C. R. 70 . .187,203 
36 U. C. Q. B. 183 .115, 237, 242 

3 Can. S. C. R. 575 . . 60, 322 
10 App. Rep. 660 . 300 

{ 7 App. Cas. 829 . . 6, 144, 146 
{ 147, 158, 160, 232, 233, 252, 292 
( 307, 364, 430 



s 



Sadleks, Commonalty of . . . .4 Rep. 54 b. 

St^_ Ann's Mutual Building Society, | ^^ ^ ^ Jurist, 162 



McClanaghan i\ , 
Sands' Case .... 
Saunders i'. South-Eastern Railway 
Scripture v. Curtis 
Severn v. R. . 
Sillem, Atty.-Gen. i". 



Hardres, 488 . 
5 Q. B. D. 462 . 
11 U. 0. C. P. 346 
2 Can. S. C. R. 70 
2 H. & C. 431 . 



98 
139 

98 
147 

93 

187, 203 

182 



XXIV. 



TABLE OF CASES CITED. 



Sittingbourno & Slieeniess Ity. Co., Hole i\ 

Slaviu r. Orillia. 

Smith I'. Merchants' Bunk. 

, £.•• parte 

Sonth-Easturn Ry., Saunders r. 
South-West Boom Co., McMillan < 
Spicer, MicUUeton r. . 
Sijuier, lie .... 

State of Pennsylvania >: Wheeling, etc. 
Bridge Company . 

Suite, Corporation of Three Rivers v 

Supervisors, Bank r. . 



(5 H. ,t N. 488 . 
36 U. C. Q. B. 159 
28 Grant, <)29 . 
16 L. C. Jurist, 140 
5 Q. B. D. 462 . 
1 P. & B. 715 . 
1 Brown C. C. 201 
46 U. C. Q. B. 474 

13 Howard, 518 . 

5 L. N. 330 

7 Wallace, 26 . 



I'AGE. 

248 
148, 242, 249 
271 
315 
147 
243, 262 
19, 97 
322 

249, 257 

148, 220, 223 

351, 353. 359 

379 



Tayloi;, R. r 

Temporalities Board, Dobie v. . 
Thebergo r. Landry . 
Tliorne v. Cramer 
Thrasher Case .... 

Tluee Riv3rs (Corporation of) v. Suite 



36 U. C. Q. B. 183 
7 App. Cas. 136 
2 App. Cas. 102 
15 Barb. 112 
4 C. L. T. 53 
( 5 L. N. 330 



115, 237, 242 
.149,178 

3, 41, 49, 338 
419 
320 

148, 220, 223 

351, 353, 359 



United Statks r. Denison 
United >States Bank, Osborn 
Unwin '■. Wi)lseley . 



u 



2 Ch. Ch. 176 
9 Wheaton, 738 
1 T. H. 674 



316 
380 
361 



Valin v. Langlois 



Vianna, De La Vega r. 



3 Can. S. C. R. 1 .187, 280, 288 

308, 316 

5 App. Cas. 115 . .268, 271, 272 

301, 304, 305, 307, 318, 321 

1 B. & A<1. 284 . . 282 



W 



Walforp, Dyke r. . 
Walker, Atty.-Gcn. ,. 
Wardens (Board of), Cooley c. . 
WestoTi r. Council oi' Charleston 
Weymouth c. Nugent 

Wheate, Burgess v 

Wheo'<ing & Belmont Bridge Co., State 

Pennsylvania r. . . . 
Wilson r. Blackbird Creek Marsh Co. 

■ (". McGuire .... 

Windsor & Anni'.polis Ry., Be . 

, Murdoch i'. 

Wolseley, Unwin r. . 



5 Moore P. C. 434 
25 (hant, 233 
12 Howard, 299 . 
2 Peters, 449 

6 B. i^ S. 22 . 
1 Eden, 227 ; 1 W. Bl. 123 



^^ 1 13 Howard, 518 . 

2 Peters. 245 . 
2 O. R. 118 
4R. iVO.312 . 
Russell's Equity Rep. 137 
1 T. R. 674 



16, 59, 109 

96 

264 

380 

114 

3, 19 

91, 93, 97, 98 

.249, 267 

249 
. 320-322 
368 
387 
3til 



;i- 



PAGE. 

248 

,148, 242, 24}> 
27 J 
315 
147 
.243, 262 
. 1!>, 97 
322 

.249,257 

.148, 220, 223 
351, 353. 359 
379 



CASES DECIDED 



ON THE 



I BRITISH NORTH AMERICA ACT, 1867. 



.115, 237, 242 

.149,178 

.3, 41, 49, 338 

419 

320 

.148, 220, 223 

351, 353, 359 



316 
380 
361 



.187, 280, 288 

308, 316 

.268, 271, 272 

3, 307, 318, 321 

282 



15, 59, 109 

95 

2(>4 

380 

114 

^1. 123 . 3, 19 
91, 93, 97, 98 

.249, 257 

249 

. .320-322 

368 

137 . 387 

361 



PRIVY COUNCIL. 

The Attokxev-GeiVeral of Ontario Inforviant ; .j. c * 

AN11 — .— 

Andrew F. Meucer Defendant. Ju'.", ■'>, <h is. 

0)1 Appeal ff>m flu- Sxpirme Cuiid of Canada. 

[^Reported 8 App. Cas. 707.1 

B. N. A. Ad., ss. 103, 100— Escheats — Provincial revenues — RuyaHies. 

Lands in the Province of Ontario osc!ieated to the Crown for defect 
of heirs belong to the Province and not to the Dominion. 

At the date of passing the B. N. A. Act the revenue arising from all 
escheats to the Crown within the then Province of Canada was 
subject to the dispo.^al and apj^i'^^pi'hxtion of the Canadian Legis- 
lature, and not of the Crown. Although sect. 102 of the Act 
vested in the Dominion tlie general public revenues, as then 
o.xisting of the Provinces ; yet by sect. 109 the casual revenue 
arising from lands escheated to the Crown after the Union was 
reserved to the Provinces — the words " lands, mines, minerals 
and royalties " therein including, according to their true con- 
strnction, royalties in respect of lands such as escheats. 

Appeal from an order of the Supreme Court of Canada 
(Nov. 14th, 1881), (1), reversing an order of the Court of 



*P)rsent:— The Lord Chancei.lok (E.vki. ok Sklboknk), Sik Baknes 
Peacock, Snt Moxtacuk E. Smith, Sik Robeut P. Colliku, Sat RicHARiy 
Couch, and Sat Authlu Hobholsk. 

(1) 5 Can. S. C. R., 53» ; po.-<l, p. IG. 



V,r^ 



1883 

Attokney- 
Gknehal 

V. 

Merceh. 
Statement. 



2 



PRIVY COUNCIL. 



[768] Appeal for Ontario (March 27th, 1880,) (1), which 
unanimously affirmed an order of one of the judges of the 
Court of Chancery (January 7th, 1879), (2). 

On the 28th of September, 1878, the appellant filed an 
information on behalf of the Crown to recover from the 
respondent and others possession of a certain piece of land 
in the city of Toronto, in the Province of Ontario, being 
part of the real estate of Andrew F. Mercer, who died 
intestate on the 13th of June, 1871, and without leaving 
any heirs or next of kin. The respondent demurred 
thereto for want of equity. The first Court held in 
favour of the appellant that the land had escheated to the 
Crown for the benefit of the Province, and this judgment 
was affirmed by the Court of Appeal. 

The Dominion Government appealed in the name of 
the respondent, and it was agreed between the two Gov- 
ernments that the appeal should be limited to the ques- 
tion whether the Government of Canada or that of On- 
tario was entitled to lands situate in the Province of 
Ontario and escheated to the Crown for want of heirs. 

The Sui)reme Court, by a majority (Fournier, Henry, 
Tasciioieau and Gwynne, JJ., Ritchie, C. J., and Strong, J., 
dissenting), reversed the judgments of the Courts below, 
and dismissed the information. The reasons stated shortly 
were that escheat is not a reversionary right but a fiscal 
prerogative; that the feudal system has never existed in 
Canada ; that the privileges of the Provinces were sur- 
rendered as a preliminary to the Confederation effected 
by the B. N. A. Act ; that by that Act all duties and 
revermes were transferred to the Dominion and to bo 
appropriated to the public service of Canada; and that 
the Act does not confer on the Government or Legislature 
of Ontario any right to receive or dispose of the revenue 
arisinff from escheated estates situate in the Province. 






% 






(1) G Api). Rnp., 570, post. 



(2) 'JGCraiit, 2»i, /m<. 



PRIVY COUNCIL. 



Davey, Q.C., and Moiuat, Q.C. (Attorney-General of On- 
tario), with them, Cart^vright, of the Canadian bar, and 
Raleigh, for the appellant : — 

Lands in the Province of Ontario are held in free and 
common socage. Reference was made to 31 Geo. III. c. 31, 
ss. 43, 44. Escheat is a reversionary right incident to 
such tenure. Such lands belonged to Her Majesty for the 
[769] benefit of the Province before they were granted, 
and must be taken to revert to the Crown for the benefit 
of the Province on escheat for want of heirs. The Lieu- 
tenant-Governor of the Province, see B. N. A. Act, sects. 
72, 7u, acts in the Queen's name, and therefore represerts 
the Queen, notwithstanding that he is appointed by the 
Governor-General of the Dorairiion. See also Theherge v. 
Landry (1). For an outline of the legislation shewing 
how public lands have been dealt with in Canada gener- 
ally,and how the title thereto has been gradually transferred 
to the Province : see 1 Anne, c. 1, especially s. 8 ; 39 and 
40 Geo. III. c. 88; 47 Geo. III. c. 24 ; 1 William IV. c. 
25 ; 1 & 2 Vict. c. 2. See also the Colonial legislation, 
viz.: 7 William IV. (Upper Canada), c. 118, and after the 
Imperial Statute, 3 ife 4 Vict. c. 35, for the union of the 
two Canadas, especially sects. 50, 01, 54. Reference v/as 
made to 4 & 5 Vict. c. 100 (Canada), and 12 Vict. c. 31, 
amending it; 9 Vict. c. 114 (Canada), in substance a re- 
enactment by the Provincial Legislature of the provisions 
of the Act of Union (3 & 4 Vict. c. 35), confirmed by 10 
& 11 Vict. c. 71, and to 15 & 10 Vict.c. 39 (Imperial). 

The primary question is whether escheats fall with- 
in sect. 102 or sect. 109 of the B. N. A. Act. Escheated 
lands are within sect. 109. The right by escheat is a 
^s of reversion. See / 



«P' 



'gess 



(2), 



1 



Chitty on the Prerogatives of the ( 
(Sir Montague E. Smith. 



pp. 



230, 233. 



own, 
Blackstone puts it under the 



1883 
Attok.ney- 

(iKNKHAL 

V, 

Mkkcek. 

Al{aU.MENT. 



(1) 2 App. CnH. 102; <intf, vol. 2, p. 1. (2) 1 Edt-n. 227 ; 1 W. HI. 123. 



t r. 



'i 1 



II 



|!' 



■ ( 



4 PRIVY COUNCIL. 

1883 head of purchase. Sir Richard Couch referred to sect. 

Attorney- ^*^7 of the Civil Code of Lower Canada.) Such right, or 
Gknkuai. inchoate right, or possibility of a right is an interest of 
Mkkcek. ^;jjg Crown in land within sect. 109. The other side say 

AudUMKNT. tiiat the right by escheat is a right to I'evenue within sect. 
102, which has not been transferred to the Province. 
There is no interpretation of " revenues " in the Act. But 
in sect. 101) the word "royalties" covers escheats. If 
used in a narrow sense the word would be supei'iluous, 
bein<>- included in "mines." And as refjards the word 
" lands," all lands ungranted at the time of the Union be- 
longed to the Province, and the right to take by escheat 
is an interest in land which belongs to the same owner 
who ■would have had the power to grant. Escheats would 
also come under the head of " property and civil rights." 
[770] See sect. 92, sub- sect. 13. When a subject is assigned 
to the Province, any rev^enue derived from thence is also 
assigned. Reference was made to Cliurch v. Blake (1); 
Chitty on Prerogatives, p. 81. The revenues subject to 
the Dominion under the B. N. A. Act are such as are 
regularly appropriated to the public service, not those 
wliich are subject to executive control, and grantable by 
Her Majesty ex speciali gratia, among which are to be 
reckoned the revenues arising from escheated estates. 
See 22 Vict. c. Ui, ss. 1, 12 and 15 (Con. Stat. Canada^ 

The Solicitor-General (Sir F. riei-schell), and Lash, 
Q.C, of the Canadian bar (Jeiine with them), for the 
respondent : — 

The appellant has failed to shew affirmatively that 
escheats in the Province belonged to it. It is immaterial 
whether escheat is a matter of reversion or not : it exists 
jure corome. The law does not recognise a reversion on 
a grant in fee-simple, but a right or prerogative of the 

(1) 2 (Quebec Law Rep. 23f(, post, sub. noiii. Attorne;/-(h'ncral of Quebec v. 
Attornri/'Weneral of the DuvUnion. 






I 



I 



('«•■>. 



PRTVY COUNCIL. 



Quebec V. 



Crown under wliich lands fall to the Crown under certain 
circumstances. Reference was made to 31 Geo. III. c. 31, 
s. 4;^», and 2 Blackstone, p. 89. That right never belonged 
to the Province, and therefore is unaffected by sect. 109 
of the B. N. A. Act. The fruits of escheats were always 
a part of the royal revenue, and in the various statutes 
which deal with this question escheated binds are always 
treated as revenue. Those statutes deal with revenue 
and not with reversionary or prerogative rights. See 1 
Anne, c.l, s. 5 ; 39 and 40 Geo. III. c. 88 ; 59 Geo. III. 
c. 94 ; 10 Geo. IV. c. 50, s. 12G ; 1 Wm. IV. c. 25, s. 12 ; 
3 &; 4 Vicfc. c. 35, s. 54; 9 Vicfc. c. 114 (Canada), con- 
firmed by 10 & 11 Vict. c. 71; 4 & 5 Vict. c. 100 
(Canada), and 12 Vict. c. 31 (Canada). These lust two 
Acts dealt with public lands, including those which had 
escheated. " Casual revenues" must include revenues fnmi 
escheats. See 15 and 10 Vict. c. 39, which ratifies the 
provisions of the two Colonial Acts; for the latter 
assumed to legislate in regard to lands which might 
escheat, the only power to do so resulting from the power 
to deal with casual revenues as given by the Act of Union 
3 & 4 Vict. c. 35, s. 54 ; while Parliament gives a legis- 
lative construction to the Act which gives such power. 
Legislation, therefore, dealt with the fruits of escheat 
[771] as revenue, and not as an interest in lands ; and the 
Dominion Parliament had the power of appropriation 
over such revenue. The result of the B. N. A. Act was to 
create certain provinces with certain constitutional rights, 
new legislatures and new executives. Previously the 
Lieutenant-Governor of each Province directly represent- 
ed the Queen. Under the Act the Queen is part of the 
Dominion Parliament (sect. 17), not of the Ontario Legis- 
lature (sect. 69). The Lieutenant-Governor does not now 
represent the Queen except where the Act so directs. 
Reference was made to sects. 92, 109, 117. Russell v. 



18H3 
— /— ' 

Attoiisky- 
Gknkkal 

V. 

Mkhceii. 

AlKilMENT. 



c 



PRIVY COUNCIL. 



1S83 

Attounky- 
Genkral 

V. 

Meuckr. 
Aroumknt. 



Itl 



The Queen (1). The word " lands " does not include 
escheats after the Act, it includes lands ungranted and 
lands escheated before the Act. The word " royalties " in 
sect. 109 is not wide enough to include escheats ; and is 
not a word which would be used for that purpose. Sect. 
117 only refers to property actually in use for public pur- 
poses. Inasmuch as the fruits of escheats are not expressly 
given to the several Provinces, they belong to the Do- 
minion. 

Davey, Q.C., replied. 

The judgment of their Lordships was delivered by 

The Lord Chancellor (Earl of Selbome) : — 

The question to be determined in this case is, whether 
lands in the Province of Ontario, escheated to the Crown 
for defect of heirs, " belong " (in the sense in which the 
verb is used in the B. N. A. Act, 18G7), to the Province of 
Ontario or to the Dominion of Canada. 

By the Imperial Statute 31 Geo. III. c. 31, s. 43, it 
was provided that all lands which should be thereafter 
granted, within the Province of Upper Canada (now On- 
tario), should be granted in free and common socage, in 
like manner as lands were then holden in free and com- 
mon socage in Enfjland. The argument before their 
Lordships, on both sides, proceeded upon the assumption 
that the lands now in question were so holden. 

All land in England, in the hands of any subject was 
holden of some lord by some kind of service, and was 
[772] deemed in law to have been originally derived from 
the Crown, "and therefore the King was Sovereign Lord, 
or lord paramount, either mediate or immediate, of all 
and every parcel of land within "the realm" (Co. Litt. 
G5a). The King had "dominium directum," the subject 



(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12. 



PRIVY COUNCIL, 



include 


IB 


ited and 


IB 


ilties " in 


M 


s ; and is 


% 


56. Sect. 

iblic pur- 

^xpressly 

the Do- 





I by 

whether 
le Crown 
^hich the 
ovince of 

s. 43, it 
lereafter 
now On- 
ocage, in 
md com- 
tre their 

umption 

ect was 
ind was 

ed from 
^n Lord, 
3, of all 

.^0. Litt. 

■siiliject 



"dominium utile" {Ibid. la). The word "tenure" signi- 1883 
fied this relation of tenant to loi"d. Free or common attoknky. 
socage was one of the ancient modes of tenure (" A man Genekal 
may hold of his lord by fealty only, and such tenure is Meucer. 
tenure in socage," Litt. sect. 118), which, by the Statute Jlocment. 
12 Car. II. c. 24, was substituted throughout England for 
the former tenures by knight-service and by socage in 
capite of the King, and relieved from various feudal bur- 
dens. Some, however, of the former incidents were 
expressly preserved by that statute, and others (escheat 
being one of them), though not expressly mentioned, were 
not taken away. 

" Escheat is a word of art, and signifieth properly when 
by accident the lands fall to the lord of whom they are 
holden, in which case we say the fee is escheated." (Co., 
Litt. 13a). Elsewhere (Ibid. 92b), it is called "a casual 
profit," as happening to the lord "by chance and unlooked 
for." The writ of escheat, when the tenant died without 
heirs, was in this form : — " The King to the Sheriff, &c. 
Command A., &c., that he render to B. ten acres of land, 
with the appurtenances, in N., which C. held of him, and 
which ought to revert to him the said B, as his escheat, 
for that the said C. died without heirs " (F. N. B., 144 F.) 
If tiiere was a mesne lord, the escheat was to him ; if not, 
to the King. 

Fiom the use of the word "revert," in the writ of 
escheat, is manifestly derived the language of some 
authorities which speak of escheat as a species of " rever- 
sion." There cannot, in the usual and proper sense of the 
term, be a reversion expectant upon an estate in fee- 
simple. What is meant is that, when there is no longer 
any tenant, the land returns, by reason of tenure, to the 
lord by whom, or by whose predecessors in title, the tenure 
Was created. Other writers speak of the lord as taking 
it by way of succession or inheritance, as if from the 



1883 

Attornkt- 
Genekal 

V. 

Meucer. 
Judgment. 



mi 



8 



PRIVY COUiS'CIL. 



tenant, which is certainl}' not accurate. The tenant's estate 
(subject to any charges upon it which he may have created) 
has come to an end, and the lord is in by his own right. 

[773] The profits and the proceeds of sales, of lands 
escheated to the Crown, were in England part of the 
casual hereditary revenues of the Crown, and (subject to 
those powers of disposition which were reserved to the 
Sovereign by the Restraining and Civil List Acts) they 
were among the hereditary revenues placed at the dis- 
posal of Parliament by the Civil List Acts passed at the 
beginning of the present and the last preceding reign. 
Those Acts extended, expressly, to all such casual revenues, 
arising in any of the colonies or foreign possession.^ of the 
Crown. But the right of the several Colonial Legislatures 
to appropriate and deal with them, within their respective 
territorial limits, was recognised by the Imperial Statute 
15 & IG Vict. c. 39, and by an earlier Imperial Statute 
(10 & 11 Vict. c. 71), confirming the Canada Civil List 
Act, pas.sed in 1846 after the union of Upper and Lower 
Canada, by which Act the provision made by the Colo- 
nial Legislature for the charges of the Royal Government 
in Canada was accepted and taken, instead of " all terri- 
torial and other revenues," then at the disposal of the 
Crown, arising in that Province ; over which (as to three 
fifths permanently, and as to two-fifths during the life of 
the Queen, and for five years afterwards), the Legislature 
of the Province was to have full power of appropriation. 
It may be remarked, that the Civil List Acts of the Pro- 
vince of Canada contained no reservation of escheats, 
similar to sect. 12 of each of the Imperial Civil List Acts 
above referred to. It must have been purposely omitted, 
in order that escheats might be dealt with by the Gov- 
ernment or Legislature of Canada, and not by the Crown, 
in whose disposition they must have remained if they had 
not been in that of the United Province of Canada. 



I 



# 






iWlli! 



PRIVY COUNCIL, 



9 



-It 

I 



When, therefore, the " British North America Act " of 
1867 passed, the revenue arising from all escheats to the 
Crown, within the then Province of Canada, was subject 
to the disposal and appropriation of the Canadian Legis- 
lature. 

That Act united into one "Dominion," under the name 
of "Canada," the former Provinces of Canada (which is 
subdivided into the two new Provinces of Ontario and 
Quebec, corresponding with what had been before 1840 
Ui)per anil Lower Canada), Nova Scotia and New Bruns- 
[774] wick. It established a Dominion Government and 
Legislature and Provincial Governments and Legisl.atures, 
making such a division and apportionment between them 
of powers, responsibilities, and rights as was thought 
expedient. In particular, it imposed upon the Dominion 
the charge of the general public debts of the several pre- 
existing Provinces, and vested in the Dominion (subject 
to exceptions, on which the present question mainly 
turns), the general publ'c revenues, as then existing, oi" 
those Provinces. This was done by sect. 102 of the Act, 
which is in these words: — "All duties and revenues, over 
which the respective Legislatures of Canada, Nova Scotia, 
and New Brunswick, before and at the Union, had and 
have power of appropriation, except such portions thereof 
as are by this Act reserved to the respective Legislatures 
of the Provinces, or are raised by them in accordance 
with the special powers conferred upon them by this Act, 
shall form one Consolidated Revenue Fund, to be appro- 
priated for the public service of Canada, in the manner, 
and subject to the charges, in this Act provided." 

If there had been nothing in the Act leading to a con- 
trary conclusion, their Lordships might have found it 
difficult to hold that the word " revenues," in this section 
did not include territorial as well as other revenues ; or 
that a title in the Dominion to the revenues arising froia 



1S83 

AXTOltNKY- 

Genkral 

V. 

Mercek. 

JUilCMENT. 



10 



I'lJIVY COUNCIL. 



1883 

Attoknky- 
Gknkuai, 

r. 
Meuckh, 

■Judgment. 



public lands did not carry with it a right of disposal and 
appropriation over the lands themselves. Unless, there- 
fore, the casual revenue, arising from lands escheated to 
the Crown after the Union, is excepted and reserved to 
the Provincial Legislatures, within the meaning of this 
section, it would seem to follow that it belongs to the 
Consolidated Revenue Fund of the Dominion. If it is so 
excepted and reserved, it falls within sect. 12G of the 
Act, which provides that "such portions of the duties 
and revenues over which the respective Legislatures of 
Canada, Nova Scotia and New Brunswick had before the 
Union power of appropriation, as are by this Act reserved 
to the respective Governments or Legislatures of the Pro- 
vinces, and all duties and revenues raised by them in 
accordance with the special powers conferi'ed upon them 
by this Act, shall, in each Province, form one Consolidated 
Revenue Fund, to be appropriated for the public service 
of the Province." 

[775] Their Lordships, for the reasons above stated, 
assume the burden of proving that escheats, subsequent 
to the Union, are vvithin the sources of revenue excepted 
and reserved to the Provinces, to rest upon the Provinces. 
But, if all ordinary territorial revenues arising vvithin the 
Provinces are so excepted and reserved, it is not a priori 
probable that this particular kind of casual territorial 
i-evenue (not being expressly provided for) would have 
been, unless by accident and oversight, transferred to the 
Dominion. The words of the statute must receive their 
proper construction, whatever that may be ; but, if this 
is doubtful, the more consistent and probable construction 
ought, in their Lordships' opinion, to be preferred. And 
it is a circumstance not without weight in the same direc- 
tion, that, while "duties and revenues" only are appro- 
priated to the Dominion, the public property itself, by 
which territorial revenues are produced (as distinct from 



§ 



I 






I 

■■I 

■A 



PRIVY COUNCIL. 



11 



posal and 
?.ss, there- 
;heated to 
!served to 
g of this 
^8 to the 
If it is so 
!6 of the 
he duties 
atures of 
)efore the 
I reserved 
' the Pro- 
them in 
pon them 
isolidated 
ic service 

stated, 

bsequent 

excepted 

rovinces. 

ithin the 

a priori 

rritorial 

Id have 

d to the 

ve their 

, if this 

truction 

I. And 

le direc- 

appro- 
;self, by 
ct from 



1883 



Attohnet- 

(iKNKHAI, 



I 



;* 
'H 



the revenues arising from it), is found to be appropriated 
to tlie rrovinces. 

The words of exception in sect. 102 refer to revenues j, 

of. two kinds : (1) such portions of the pre-existing, ^Ikrcer- 
"duties and revenues" as were by the Act "reserved to J^'I'^ment 
the respective Legislatures of the Provinces ;" and (2) 
such duties and revenues as might be " raised by them, 
in accordance with the s[)ecial powers conferred on them 
by this Act." It is with the former only of these two 
kinds of revenues that their Lordships are now concerned ; 
the latter being the produce of that power of "direct tax- 
ation within the Province, in order to the raising of a 
revenue for Provincial purposes," which is conferred upon 
Provincial Legislatures by sect. 92 of the Act. 

There is only one clause in the Act by which any 
sources of revenue appear to be distinctly reserved to the 
Provinces, viz., the J09th section: — "All lands, mines, 
minerals and royalties belonging to the several Provinces 
of Canada, Nova Scotia and New Brunswick, at the 
Union, and all sums then due or payable for such lands, 
mines, minerals or royalties shall belong to the several 
Provinces of Ontario, Quebec, Nova Scotia and New 
Brunswick, in which the same are situate or arise, sub- 
ject to any trusts existing in respect thereof, and to any 
interest other than that of the Province in the same." 
The Provincial Legislatures are not, in terms, here men- 
[77G] tioned ; but the words, " shall belong to the several 
Provinces," are obviously equivalent to those used in 
sect. 126, "are by this Act reserved to the respective Gov- 
ernments or Legislatures of the Provinces." That they 
do not apply to all lands held as private property at the 
time of the Union seems clear from the corresponding 
language of sect. 125. " No lands or property belonging 
tit Canada, or any Province, shall be liable to taxation :" 
where public property only must be intended. They 



12 



PRIVY COUNCIL. 



Attorn KY- 
Gknkual 

MEIU'EH. 

Judgment. 



evidently mean lands, etc., which were, at the time of tho 
Union, in .«ome .sense and to some extent publici juris; 
and, in this respect, they receive ilhistration from another 
section, tho 11 7th (which their Lordships do not regard 
as otherwise very material), "The several Provinces shall 
retain all their res|)ective pul)lic property, not otherwise 
disposed of in this Act, sul»ject to the right of Canada to 
assume any lavds or public properfij required for fortifi- 
cations, or for the defence of the country." 

Their Loi-dships are not satisfied that sect. 102, when it 
s])caks of ceitaiii portions of the then existing duties and 
revenues as " reserved to the respective Legislatures of 
the Pi-ovint-es," ought to be understood as referring to 
the powers of provincial legislation conferred by sect. 92. 
Even, however, if this were so held, the fact that exclu- 
.sive powers of legislation were given to the Provinces as 
to " the management and sale of the public lands helonijlng 
to the Province," would still leave it necessary to resort to 
sect. 100 in order to determine what those public lands 
were. The extent of the Provincial power of legislation 
over " property and civil rights in tlie Province " cannot 
be ascertained without at the same time ascertaining the 
power and rights of the Dominion under sects. 91 and 
102, and therefore cannot throw much light upon the 
extent of the exceptions and reservatvons now in question. 

It was not disputed in the arguraeiit tor the Dominion 
at the Bar, that ail territorial revenues arising within each 
Province from " lands," (in which term must be compre- 
hended all estates in land), which at the time of the Union 
belonged to the Crown, were reserved to the respective 
Provinces by sect. 109 ; and it was admitted that no dis- 
tinction could, in that respect, be made between Crown 
lands then ungranted and lands which had previously 
reverted to the Crown by escheat. But it was insisted, 
that a lino was drawn at the date of the Union, and that 



k 



1 



i 



PRIVY COUNCIL. 



13 



line of tlie 
ilici juris; 
HI another 
lot regard 
nces shall 
otherwise 
Canada to 
for fortiti- 

2, when it 
III ties and 
latures of 
ferrina' to 
J sect. 92. 
lat exclu- 
)vinces as 
belonging 
resort to 
ic landa 
cfislatiou 
cannot 
ning the 
91 and 
poll the 
uestion. 
ominion 
1 in each 
compre- 
e Union 
spective 
no dis- 
crown 
sviously 
nsisted, 
nd that 



I 



I 



[777] the words were not sufficient to reserve any lands ih83 
afterwards escheated, which at the time of the Union attohnet. 
were in private hands, and did not then belong to the • ■ '•"''^■•"al 
Crown. Mkkteh. 

If the word "lands" had stood alone, it might have 'Tii'^'^'knt. 
lieen difficult to resist the force of this argument. It 
would have been difficult to say that the right of the lord 
paramount to future escheats was " laud belonging to 
him," at a time when the fee-sinii)le was still in the free- 
holder. If capable of being described as an interest in 
lan<l, it was certainly not a present pi-oprietary right to 
the land itself. The word "lands," however, does not 
here stand alone. The real question is as to the ett'ect of 
the words '" lands, mines, minerals and royalties," taken 
together. In the Court of Appeal, of the Province of 
Quebec it has been held that these words are suffi- 
cient to pass subsequent esclieats ; and, for this purpose, 
stress was laid by some, at least, of the learned Judges of 
that Couit (the others not dissenting), on the paiticular 
word '■ royalties " in this context. If " lands and royal- 
ties " only had been mentioned (without " mines " and 
" minerals "), it would have been clear that the right of 
escheats (whenever they might fall), incident at the time 
of the Union to the tenure of all socage lands held from 
the Crown was a " royalty" then belonging to the Crown 
within the Province, so as to be reserved to the Province 
by this section, and excepted from sect, 102. After full 
consideration, their Lordships agree with the Quebec 
Court in thinking that the mention of "mines" and 
" minerals," in this context is not enough to deprive the 
word " royalties " of what would, otherwise, have been its 
proper force. It is true (as was observed in some of the 
opinions of the majority of the Judges in the Supreme 
Court of Canada) that this word " royalties " in mining 
grants or leases (whether granted by the Crown or by a 



14 



PRIVY COUNCIL. 



1883 

Attorney- 
General 

r. 
Merckr. 

Judgment. 



subje jtj, lias often a special sense, signifying that part of 
the reddendum which is variable, and depends upon the 
quantity of minerals gotten. It is also true that, in 
Crown grants of land in British North America, the prac- 
tice has generally been to reserve to the Crown, not only 
royal mines, properly so called, but minerals generally ; 
and that mining grants or leases had, before the Union, 
been made by the Crown both in Nova Scotia and in 
New Brunswick ; and that, in two Acts of the Province 
[778] of Nova Scotia (one as to coal mines, and the other 
as to mines and minerals generally), the word "royalties" 
had been used in its special sense, as applicable to the vari- 
able reddenda in mining grants or leases. Another Nova 
Scotia Act of 1849, surrendering to the Provincial Legis- 
lature the territorial and casual revenues of the Crown 
arising within the Province, was also referred to by Mr. 
Justice Gwynne. But the terms of that Act were very 
similar to those now under consideration; and if "royal- 
ties," in the context which we have here to consider, do 
not necessarily and solely mean reddenda in mining 
grants or leases, neither may they in that statute. 

It appears, however, to their Lordships to be a fjUacy 
to assume that, because the word " royalties " in this 
context would not be inofficious or insensible, if it were 
regaixled as having reference to mines and minerals, it 
ought, therefore, to be limited to those subjects. They 
see no reason why it should not have its primary and 
appropriate sen.se, as to (at all events) all the subjects 
with which it is here found associated — lands as well as 
mines and minerals. Even as to mines and minerals, it 
here necessarily signifies rights belonging to th(> Crown, 
jure corona\ The general subject of the whole section is 
of a high political nature ; it 's the attribution of Royal 
territorial rights, for purposes of revenue and government, 
to the Provinces in which they are situate or arise. It is 



PRIVY COUNCIL. 



15 



bhat part of 

Is upon the 

ue that, in 

a, the prac- 

n, not only 

generally ; 

the Union, 

tia and in 

e Province 

d the other 

"royalties" 

to the vari- 

sther Nova 

icial Legis- 

the Crown 

1 to by Mr. 

were very 

if "royal- 

ansider, do 

iti mining 

te. 

e a fallacy 

" in this 

if it were 

linerals, it 

ts. They 

niary and 

3 .subjects 

as well as 

linerals, it 

ic Crown, 

section is 

of Royal 

k^ernment, 

Ise. It is 



a sound maxim of law, that every word ought, prima 1883 
facie, to be construed in its primary and natural sense, attoiiney- 
unless a secondary or more limited sense is required by General 
the subject or the context. In its primary and natural Mk'^ckk- 
sense, " royalties " is merely the English translation or Jcdgmknt. 
equivalent of " regalitates," "jura regalia," "jura regia." 
(See, in voce " royalties," Cowell's " Interpreter ;" Whar- 
ton's Law Lexicon ; Tomlins' and Jacobs' Law Diction- 
aries.) " Regalia " and " regalitates," according to Du- 
cange, are "jura regia;" and Spelman (Gloss Arch.) says, 
" Regalia dicuntur jura omnia ad fiscum spectantia." The 
subject was discussed with much fulness of learning, in 
Dyke v. Walford (1), where a Crown grant of jura regalia> 
belonging to the County Palatine of Lancaster, was 
held to pass the right to bona vacantia. " That it is a 
jus" (said Mr. Ellis, in his able argument, ibid., p. 480), 
[779] " is indisputable ; it must also be regale ; for the 
Crown holds it generally through England by Royal pre- 
rogative, and it goes to the successor of the Crown, not to 
the hnir or personal representative of the Sovereign. It 
stands on the same footing as the right to escheats, to the 
land between high and low water mark, to felons' goods, 
to treasure trove, and other analogous '-ii'lits." With this 
statement of the law their Lordships a«.',r'30, and they con- 
sider it to have been, in suhitar' ( , affirmed by the judg- 
ment of Her Majesty in Council i i that case. 

Their Lordships are not now called upon to decide 
wliether the word "royalties" in sect. 109 of the British 
North America Act of 1867, extends to other Rv^yal 
rights besides tho.se connected with " lands," " mines ' and 
"minerals." The question is, whether it ought to be 
restrained to rights connected with mines and minerals 
only, to the exclusion of royalties, such jvs eschpu,cs, in 



(I) .f) Monif. p. c. \M. 



16 



PUIVY COUNCIL. 



i^ 



1883 

Attorney- 
General 

r. 
Mercek. 

Judgment. 



respect of lands. Their Lordships find nothing in the 
subject, or the context, or in any other part of the Act, to 
justify such a restriction of its sense. Tlie larger inter- 
pretation (\yhich they regard as, in itself, the more proper 
and natural), also seems to be that most consistent with 
the nature and general objects of this particular enact- 
ment, which certainly includes all other ordinary territo- 
rial revenues of the Crown arising within th'3 respective 
Provinces. 

The conclusion at which their Lordships have arrived 
is, that the escheat in question belongs to the Province of 
Ontario, and they will humbly advise Her Majesty that 
the judgment appealed from ought to be I'eversed, and 
that of the Vice-Chancellor and Court of Appeal of On- 
tario restored. It is some satisfaction to know, that in 
this result the Courts of Quebec and Ontario have agreed; 
and, though it differs from the opinion of four judges, 
constituting the majority in the Supreme Court of Cana- 
da, two of the Judges of that Court, including tlie Chief 
Justice, dissented from that opinion. 

This being a question of a public nature, the case does 
not appear to their Lordships to be one for costs. 



M 



Judgments in Supreme Court of Canada. 



[livported 5 Van. S. G. R. 538.] 

BiTCHiE, C. J. : - 

This is an act on broughi^i by the Attorney-General for the Pro- 
vince oi' Ontario to recover from tlie det'entlants the possession of a 
certain parcel or tract of land in the City of Toronto, and County of 
Yiirk, in the Province of Ontario, being part of the real estate of one 
Andrew Mercer, late of the said City of TorDnto, issuer of marriage 
licenses, who died intestate, and without Iviaving any heirs or next 
of kin, on the thirteoith June, 1871, and whose rt'al estate, it is 
alleged, escheated to the Crown for the benefit of the Province of 



^ 



PKIVY COUNCIL. 



17 



ng in the 
the Act, to 
rger inter- 
ore proper 
stent with 
liar enaet- 
ry terri to- 
respective 

ve arrived 
*rovince of 



ijesty that 


1 


'ersed, and 


i: 


eal of On- 




)w, that in 


->: 


-ve agreed ; 


.r^' 


iir judges, 


' ii 


t of Ciina- 


■'>^ 


ihe Chief 




case does 


i 



r the Pro- 
fession of a 

County of 
tate of one 
f marriage 
irs or next 
estate, it is 

roviuce of 



1 



Ontario. The said Andrew Mercer, at the time of his death, was 

seised in ftc-simple in possession of the parcel of land in question. 

The action was commenced in the Court of Chancery for Ontario 

by the filing of an information on the 28th day of September, A.D. 

1878. 

The defendant, Andrew F. Mercer, demurred to the said infor- 
mation for want of equity. 

On the 7th day of January, 1879, the Vice-Chancellor made an 
order over-ruling the said demurrer. 

[G24] From this decision the said defendant, Andrew F. Mercer, 
appealed to the Court of Appeal, and the appeal was argued on the 
23rd day of May, A.D, 1879; and on the 27th day of March, 1880 
the said Court of Appeal affirmed the order, over-ruling the 
demurrer, and dismissed the appeal with costs. 

Against this last mentioned judgment and order of the Court of 
Appeal the defendant, Andrew F. Mercer, now ajipeals to the 
Supreme Court of Canada. The parties agree that the appcul shall 
be limited to the broad question as to whether tlie Govt.'rnment of 
Canada or of the Province is entitled to estates escheated to the 
Crown for want of heirs. 

We have therefore nothing whatever to do with any other ques- 
tion than simply to determine to which Government escheated 
estates belong. 

The determination of this question depends upon the construction 
of the B. N. A. Act. 

Before, however, referring to tli it Act, to enable us the better to 
understand its provisions and to arrive at a correct conclusion as to 
the intention of the Parliament of Great Britain in reference to this 
matter, it may be well to see what the state of tlie law was in regard 
to escheated estates, anel how such estates were dealt with in the 
Provinces at the time this Act passed. 

With respect, then, to the law of escheat, the doctrine is unques- 
tionably founded on the principles of the feudal system, and is not to 
be confounded with I'orl'eitures of land to the Crown, from which it 
essentially differs. Mr. Chitty, in his Prerogatives of the Crown, 
(p. 230), observing on this difloronco, says : " For forfeitures were as 
before observed used and indicted as pimishments by the old Sax'>n 
law without the least relation to the feudal system, and they diSer 
in other material respects." 

[()2.")J And therefore he anys: " Escheats revert . . . to the 
lord of the fee who is almost universally the king. In the case 



1S8.*? 

Attounky- 
Genkual 

c, 
MEliCEU. 

.Sui>. C, 
Canada. 

llitehie, C.J. 






m mm 



mm/T vj\\ 



is 

;i i; 



1883 

Attounky- 
Genkkal 

V. 

Mekcku. 

Sui). C, 
Canada. 

Ritchie, C.J. 



I t 
I 

! -I 



18 



PRIVY COUNCIL. 



of attainder of high treason, the superior law of forfeiture intervenes, 
and renders the doctrine of escheat irrelevant, for by such attainder 
lands of inheritance, though holden of another lord, are forfeited to 
the Crown." 

And Chancellor Kent (1) says of title by forfeiture : " The Eng- 
lish writers carefully distinguish betweeu escheat to the chief lord 
of the fee and forfeiture to the Crown. The one was a consequence 
of tl.e feudal connection, the other was anterior to it, and inflicted 
upon a principle of public policy." 

It is clear that the law of escheat is an incident of tenure, by 
which, for failure i heirs, tli i feud falls back into the 1 ird's hand 
by a termination of* • . "ure, and therefore it is said that all lands 
and tenements held ii? t\ v.,(ste, whether of the king or of a subject, 
are liable to the law of esciieat, and no species of property whicli 
does not lie in tenure is subject to escheat, and so Mr. Chitty say.s 
(p. 233) : " His Majesty's riglit to escheat stands on the same ground 
as every other legal right; it arises out of the seisin, and is, in 
general, governed by the same rules as govern escheats to the 
subject." 

And Chancellor Kent (2) thus speaks of title by escheat: "This 
title, in tbe English law, was one of the fruits and consequences 
of feudal tenure. When the blood of the last person seised be- 
came extinct, and the title of the tenant in fee failed from want of 
heirs or by some other means, the land resulted back, or reverted 
to the original grantor, or lord of the i'ee, from whom it procee- 
ded, or to his descendants or successors. All escheats under the 
English law are declared to be strictly feudal and to import the ex- 
tinction of tenure." 

And so it is said: "The lord on the escheat takes the estate by a 
title paramount to the tenant since he is ia of an estate out of which 
the tenant's interest was originally derived or carved, and it is said 
to be ' a laixed title, being neither a pure purchase nor a pure 
descent, but in some measure cuuipounded of both,' and that it 
ditl'ers from a forfeiture in that the latter is for a crime personal tu 
[62G] the offender, of which the Crown is entitled to take advantage 
by virtue of its prerogative, while an escheat results from the tenure 
only, * and arises from an obstruction in the course of descent.' It 
originated in feudalism and respects the intestate's succession." 

And Mr Adams says : " Escheat ia merely an incident of tenure 



(1) Com. vol. 4, p. 426. 



(2) Com. vol. 4, p. 423. 



PRIVY COUNCIL. 



10 



re intervenes, 
iuch attainder 
re forfeited to 

; " The Eng- 

the chief lord 

a consequence 

and inflicted 

of tenure, by 
[le 1 ird's hand 
that all lands 
r of a subject, 
•roperty which 
It. Chitty say.s 
le same ground 
sin, and is, in 
scheats to the 

escheat: "This 

I consequences 

•son seised be- 

froui want of 

ick, or reverted 

horn it procee- 

sata under the 

import the ex- 

tho estate by a 
\e out of which 
I, and it is said 
he nor a pure 
|i,' and that it 
le personal to 
Itake advanta-^e 

rotn the tenure 

)f descent.' It 

liccession." 

ident of tenure 

I. 4, p. 423. 



arising out of the feudal system whereby the escheated estate on tim 
death without heirs of the person last seised escheats to the lord as 
reverting to the original grantor, there being no longer a tenant to 
perform the services incidental to the tenure. It is therefore in- 
applicable to estates which do not lie in tenure." 

And this right of escheat is treated of as a reversion. 

In Cruise's Digest (1) it is said : "Escheat is a casual profit 
quod jvcci.lit domino ex eventu et ex insperato, which happens to the 
lord by chance, and unlooked for. An escheat is therefore in fact a 
species of reversion, and is so called and treated by Bracton . . . 
and when a general liberty of alienation was allowed without tfie 
consent of the lord, this right became a sort of caducary succession, 
the lord taking as ultimus hajrea 

And in Burgess v. Wheate (2) it is said : "An escheat was in its 
nature feudal, . . . and in default of heirs, the land escheated 
or reverted strictly speaking, and the legal right of escheat with us 
arises from the law of enfeofment t<) the tenant and his heirs, and 
then it returned to the lord, if the tenant died without heirs." 

And again : " It reverts by operation of law on extinguishment 
of an estate that was a fee-simple incapable of any further limitations. 
. . . The right comes as a reversion failing heirs." 

And in a note to Middlcton v. Spicer (3) by Mr. Eden, he saya : 

" In Bnr(jess v. Wlieate it was a question of tenure, the claim of the 
Crown having been admitted on all sides to be seignioral and not 
prero^ativfll." 

If, then, this is a reversionary interest, we all know that reversion 
is defined by Lord Coke to be the returning of the land to the 
grantor or his heirs after the grant ia determined. 

[G27] In another place Lord Coke describes a reversion to be 
" where the residue of the estate always doth continue in him that 
made the particular estate." 

The idea of a reversion is founded on the principle that where a 
person has not parted with his whole estate and interest in a piece 
of land, all that which he has not given away remains in him, and 
the possession of it reverts or returns to him upon the determination 
of the preceding estate. 

Hence Lord Coke says : " The law termeth a reversion to be ex- 
ptctautonthe i)articular estate, because the donor or lessor, or their 



1883 
Attorney- 

GKN'EIIAL 
V. 

Mekcer. 

Siq.. C, 
Canada. 

Ritchie, C.J. 



(1) Vol. 3, i>. 397. (2) 1 VVm Bl. 123, 133, 175. 

(3) 1 Brown C. C. 201, 205. 



mm. 



20 



PRIVY COUNCIL. 



1888 

A'rrouN'iiY- 
Genkuai, 

V. 
MERClCi!. 

Sup. C, 
Canada. 

Ritchie, Co. 



heirs, after every determination of any particular estate, doth expect, 
or look for, to enjoy the lands or tenements again. " 

And Chancellor Kent (1) thus defines a reversion : " A reversion 
is the return of land to the grantor and his heirs after the grant is 
over; or, according to the formal definition in the New York Re- 
vised Statutes, it is the residue of an estate left in the grantor, or 
his heirs, or in the heirs of a testatoi', commencing in possession on 
the determina'ion of a particular esUvte granted or devised. It neces- 
sarily assumes that the original owner has not parted with his whole 
estate or interest in the land. . . . 

The usual incidents to the reversion, under the English law are 
fealty and rent." 

In Bnnter v. Coke (2) before the passing of the statute making 
wills spe! ic fr-- > iie death of the party, it was held that "a devise 
of lands is not good if the testator had nothing in them at the time of 
the mau'lag bis will; f'r a man cannot give that which he has not, 
and the statute cay eintunvers mea having lands to devise them, so 
that if the devisor has not the lands, he is out of the statute ;" citing 
Co. Lit., 392. It was admitted " that, if one has a manor and devises 
it, and after a tenancy escheat, that shall pass by the devise as being 
part of the manor." 

[628] Tills being the doctrine and law of escheat, the Crowu before 
Confederation surrendered to the respective Provinces the manage- 
ment, control, and disposal of the Crown estate, and the casual and 
territorial revenues of the Crown derivable therefrom ; in other 
words, the Crown surrendered its rights in the public domain, and 
practically placed the Provinces in the same position in referenco 
thereto that the Crown itself held. 

Our attention has been called by the learned counsel, in his con- 
tention for the claims of the Dominion, to the law passed in the 
Province of New Brunswick, as illustrative of what the Crown in- 
tended to part with in reference to all the Provinces. This Act, us 
I stated in the argument, was prepared in England. It was trans- 
mitted by Lord Glenelg, the then Colonial Secretary, in a despatch 
dated Slst October, 183G, to the Lieut-Governor, Sir A. Campbell, 
in which he says : " Sir, — In my despatch of the lOth Septembor, 
I apprised you that I was engaged in correspondence with Messrs. 
Crane & WiUnot (then delegates from the H. of Ass. ofN. B.) on the 
provisi jns of the Act for securinj, the Civil List which it is proposed 



h 



(1) Com. vol. 4, pp. 353, Sfj"). 



(2) 1 Salkeld, 237. 



Ill 



PllIVY COUNCIL. 



21 



te, doth expect, 

" A reversion 
ter the grant is 
New York Re- 
the grantor, or 
n possession on 
isecl. It ncces- 
with hia whole 



English law avc 



statute making 
L that "a devise 
m at the time of 
ich he has not, 
devise them, so 
statute ;" citing 
anor and devisea 
devise as being 

le Crowu before 
;e3 the mauage- 
l the casual and 
from ; in other 
ic domain, and 
on in reference 

isel, in his con- 
V passed in the 

the Crown in- 
This Act, us 
It was trans- 
f, in a despatch 

r A. Campbell, 
.)th Septemboi', 
,e with Messrs. 

iN. B.) on the 

1 it is proposed 

,lkeld, 237. 



to grant to His Majesty in New Bninswick, I now enclose for your 
information a cipy of that bill, which has been prepared in concur- 
rence with the Lords Commissioners of His Majesty's Treasury. It 
is compiled from the corresponding Acts of Parliament which apply 
to the grant of the Civil List in this country, with no other changes 
than such as uiiavoi<lably grow out of the different circumstances of 
the two cases. " 

This Act was subsequently made perpetual, and is to be found in 
the Consolidated Statutes of New Brunswick, 1877, title 3, ch. 5, 
{p. 1015] and by which it is enacted that : 

Sect. 1. "The proceeds of all Her Majesty's hereditary, territorial 
and casual revenues, and of all sales and leases of Crowu lands, 
woods, mines and royalties, now and hereafter to be collected, hav- 
ing been surrendered by the Crown, shall with the exceptions here- 
inalter provided, be payable and paid to the Provincial Treasurer 
for the use of the Province. " 

[G29] Sect. 2 provides for the payment to Her Majesty of the clear 
j'early sum of £14, ."300 out of the above and other revenues of the 
Province, with preference to all other charges or payments. 

Sect. 3. "All moneys paid to the treasurer under this chapter, 
except the said £14,500, shall form part of the general revenues, 
and be appropriated as such. " 

Sect. 4. "The Governor in Council may expend out of the gross 
proceeds of such hereditary and other revenues and such sales, the 
sums of money which from time to time they may deem necessary 
for the prudent management, protection and collection thereof." 

Sect. '). "The Governor shall, within fourteen days from the 
opening of every session of the Legislature, cause to be laid before the 
Assembly a detailed account for the previous year of all the par- 
ticulars of the income and expenditure of, and relating to the said 
revenues," etc. 

Sect. 0. "All grants, leases, etc., by this chapter declared to 
be under the control of the Legislature, shall be void unless the 
same be made upon sale or lease to the highest bidder at public 
auction, after due notice in the Roxjal Ga2e<<c,aud the consideration 
thereof be made payable to Her Majesty " 

Sect. 7. "Nothing in this chapter shall impair or affect any 
powers of control, management, or direction which have been or 
may be exercised by the Crown, or by other lawful warrant, relative 
to any proceedings for the recovery of any such revenues, or to 
compensation made or to be made on account of any of the same, or 



1H83 

Attornky- 
Genekal 

Meuoeh. 

Rui). C, 
Canada. 

Ritchie, C.J. 



22 



PRIVY COUNCIL. 



1883 

Attorney- 
General 

V. 

Mercer, 

Sup. C, 
Canada. 

Ritchie, C.J. 



M.^'^ 



to any remission, mitigation or pardon of any penalties, fines, or 
forfeitures, incurred or to be incurred, or to any other lawful act, 
matter, or thing which has been or may be done touching the said 
revenues, or to disable Her Majesty from making any grant or 
restitution of any estate, or of the produce thereof, to which Her 
Majesty hath or shall become entitled by escheat for want of heirs, 
or by reason of any forfeiture, or of the same having been purchased 
by or for the use of an alien, or to make any grant or distribution 
of any personal property devolved on the Crown for the want of 
next of kin or personal representatives of any deceased person ; but 
such rights and powers shall continue to be exercised and enjoyed 
in as ample a manner as if this chapter had not been made, and a* 
the same have or might have been heretofore enjoyed by the Crown ; 
but the moneys arising from the full exercise and enjoyment of the 
rights and powers aforesaid shall bo a part of the joint revenues at 
the disposal of the General Assembly, subject to the restrictions 
hereinafter provided." 

Sect. 8. "Nothing herein shall an"ul or prejudice any sale, pur- 
chase, etc., which, on or before the 17th day of July, 1837, has been 
made, given, effected, or created, but the same shall remain good and 
valid." 

[630] This Act, cited with so much confidence by Mr. McDougall, 
as supporting the claims of the Dominion, veiy clearly establishes 
that the lands and casual and territorial revenues surrendered to 
the Province were to be sold by auction, and that escheated lands 
might be granted or the proceeds distributed by the Crown, that is 
by the Executive Government of the Province representing the 
Crown, without the interference of the Local Legislature ; and in 
the Province of New Brunswick anterior to Confederation (and I 
have been at a loss to discover that it was different in the other Prov- 
inces), the exercise of that right, prerogative, or seignorial, as you 
may choose to call it, was exercised there up to and at the time of 
Confederation by the Provincial Executive. I may cite the case of 
the estate of John E. Woolford, who died in 1866, and on whose 
estate, for want of heirs, administration was granted to a nominee 
of the Crown, and which estate, real and personal, has been dealt 
with by the Governor in Council ; and prior to 1866, 1 may mention 
the case of the estate of one Nichols, which was dealt with by order 
of the Governor in Council in New Brunswick ; for as Mr. May, in 
his Constitutional History of England (1) says, in reference to the 



(1) Vol. 2, p. 538. 



PRIVY COUNCIL, 



23 



[ties, fines, or 
ler lawful act, 
hing the said 

any grant or 
to which Her 
want of heirs, 
een purchased 
r distribution 
ir the want of 
i person ; but 
i and enjoyed 

made, and as 
)y the Crown ; 
oyment ot" the 
(it revenues at 
le restrictions 

any sale, pur- 
i837, has been 
nain good and 

McDougall, 

y establishes 

rrendered to 

leated lands 

rown, that is 

esenting the 

iture ; and in 

ration (and I 

e other Prov- 

orial, as you 

t the time of 

e the case of 

id on whose 

a nominee 

s been dealt 

naay mention 

ith by order 

Mr. May, in 

rence to the 



€ 



concession of responsible government to the colonies : " At last 
she (England), gave freedom and found national sympathy and 
contentment. . . . Patronage has been surrendered, the dis- 
posal of public lands waived by the Crown, and political dominion 
virtually renounced. In short, their dependence has become 
little more than nominal, except for purposes of military defence." 

This transfer and surrender, as is well known, was much opposed 
in New Brunswick by the then Lieut.-Govenior and his Council ; 
and though the House of Assembly and Legislative Council passed 
the bill when first presented to it, the Lieut. -Governor refused his 
assent, whereupon he was recalled, or resigned, and another Governor 
[631] was sent with instructions to immediately call the Assembly 
together that the bill might be again submitted to the Local Legis- 
lature, which was done, and the bill passed. Extracts from Lord 
Glenelg's despatch, dated 6th April, 1837, will shew how this Act 
was viewed by the Imperial autiiorities at the time. 

Extract from despatch dated Cth April, 1837 from Lord Glenelg 
to Mfijor-Gen. Sir John Harvey : " Fourthly. A further question of 
great importance having been noticed in Mr. Street's (Mr. Street was 
then Solicitor- General, and was sent home to press the views of the 
Governor and his Council on the Colonial Secretary, in opposition 
to the House of Assembly) letter of the 23rd March, must not be 
passed over in silence. That gentleman suggests that it is not com- 
petent to the King, with the advice and consent of the Legislative 
Council and Assembly of New Brunswick, to alienate the hereditary 
revenues of the Crown in such a manner as to bind His Majesty's 
royal successors. On this topic I limit myself to a general state- 
ment, declining as unnecessary, and therefore as unadvisable, the 
discussion of the wide constitutional principles involved in this 
inquiry. On careful reflection, I am convinced that Mr. Street's 
opinion is not well founded. I do not think that the cession which 
during the last century it has been customary to make to Parliament 
of the hereditary revenue of the Crown for the life of the reigning 
Sovereign only is to be understood as an affirmation of the maxim, 
that the King, Lords and Commons of Great Britain and Ireland are 
incompetent to conclude a permanent settlement of the question. 
That the existing practice is founded on the highest grounds of 
expediency is indeed indisputable, but I do not perceive that the 
motives which so urgently forbid a permanent alienation of the 
hereditary revenues of the Crown in this kingdom apply to the case 
of a British Province on the North American continent. That such 



1883 

Attohnky- 
General 

V. 

Mercer. 

Sup. C, 
Canada. 

Kitchie, C.J. 



i^ 



24 



I'ltIVY COUNCIL. 



Attounkv- 
Genkuai- 

i'. 
Mkiickh. 

Suj). C, 
Canada. 

Ritchie, C.J, 



1 ',! 



a cession may be rendered valid by an Act of General Assembly, 
assented to by His Majesty, and that the enactment of such a 
colonial law may under some circumstances be judicious and ex])e- 
dicnt, might readily be shewn from a reference to our colonial 
history. I allude especially to the case of the Island of Jamaica. 
The objection, if well founded, would of course api)ly to a settlement 
for ten years, as distinctly as if it should be made in perpetuity. 
Understanding that Messrs. Crane and Wilmot (delegates from the 
House of Assembly), and Mr. Street, concur in thinking that it would 
be expedient that the Civil List should be permanently settled, I have 
[632] His Majesty's commands to actpiaint you that, if such should 
be the opinion of the House of Assembly, you are at liberty to assent 
to the Civil List Bill with that alteration." 

The whole history of this bill, and the controversies in connection 
therewith, will be found in the despatches, addresses and the pro- 
ceedings in the journals of the Local Legislature of New Brunswick. 

Before this surrender though the title to the public domain was 
in the Sovereign, and though the revenues derivable therefrom 
luiquestionably formed a part of the territorial revenues of the Crown, 
there can, I think, bi- no doubt the practical constitutional principle 
acted on was, that those lands and the proceeds and revenues 
thereof, though beyond the control of the Local Legislature, were 
held and disposed of by the Crown for the benefit of the Provinces 
in which I hey were situate ; and all grants in connection therewith 
were issued by the colonial executive in the name of the Crown, 
under the vreat seal of the Provinces, and thus in New Brunswick 
at the time of the surrender there was, as will appear from the 
documents I have referred to, a surplus of £171,224 unexpended 
which was also surrendered ; and in this connection in the same 
despatch Lord Glenelg says: "Sixthly. Mr. Street has objected 
that anj' surplus funds which iit the expiration of the term of ten 
years may remain in the public treasury, may at that peri(jd be 
claimed by the Assembly, although they would have placed at their 
disjtosal ail the surplus which has been at i)resent accumulated. I 
do not i)erceive the force of this objection. The existing accumula- 
tions are surrendered to the House cheerfully ; not merely with con- 
tentment but with satisfaction. His Majesty can have no other 
interest in the matter than that the fuiKis should be expended in 
whatever manner may best advance the welfare of the Province ; 
and on that question His Majesty conceives that reliance may, with 
far greater safety, be placed on the judgment of the representatives 






■f 



:l 



.:«:- 
■^ 



PRIVY COUNCIL. 



25 



111 Assembly, 
it of such a 
lis and ex])e- 
our colonial 
of Jamaica. 

I a settlement 
n perpetuity, 
ifes from the 
that it would 
attled, I have 

such should 
erty to assent 

n connection 
ind the pro- 
r Brunswick, 
domain was 
e therefrom 
)f the Crown, 
nal principle 
ad revenues 
latiire, were 
le Provinces 

II therewith 
the Crown, 

Brunswick 

ir from the 

unexpended 

n the same 

as objected 

term of ten 

t iieriod be 

.ced at their 

Mulated. I 

5 accuraula- 

y with con- 

e no other 

xpemU-d in 

Province ; 

may, with 
esentativea 



■4 



i 



vl the people than on any other advice. The cession of the existing 
fund is, therefore, not regarded by the King in the light of a sacrifice, 
but rather in that of a direct advantage. If during the next ten 
[G33] years (supposing the Civil List limited to that time) any now 
accumulation shouM take i)iace, it will constitute a saving effected 
by the frugality of the House of Assembly, to the benotit of which 
tliey will have the clearest title." 

And to show how abst)lutely Crown rights were intended to be 
subjected to Provincial ccmtrol, we need only refer to Lord Cllenelg's 
despatch of 2S)th April, 1837, in which he says " tlie cession is co- 
extensive with the powers of tlie Crown." 

As this was the spirit and intention with respect to New Bruns- 
wick, it is not disputed that the Crown substantially dealt in a like 
liberal manner with the other Provinces. 

Thus we see that at the time of the union the entire control, 
management, ami disposition of the Crown lands, and the proceeds 
of tlie Provincial public domain and casual revenues, were confided 
to the executive administration of the Provincial Government as 
representing the Crown, and to tlie legislative action of the Pro- 
vincial Legislatures, so that tlie Crown lands, though standing in the 
name of the Queen, were, with tiieir accessories and incident.!, to all 
intents and purposes the public property of the resi)ective Provinces 
in which they were situate and therefore, when property escheated 
it liccame reinvested in the Crown for the use and benefit of the 
Pi'ovince, and was treated and dealt Avith by the Executive Govern- 
ment and Legislatures of the Provinces as part of the public pro- 
perty of the Province, and giantable by the Lieutenant-Governur 
under the great seal of the Province when the same should be dis- 
posed of by the Provincial authorities in the interest of the Prov- 
ince. Has then the B. N. A. Act altered this and deprived the 
Provinces of the right to public property, which since Confederation 
may escheat propter defectum sanguipis, and vested the same in the 
Dominion to form part of the Consolidated Fund of Canada I 

[034] In considering the bearing of the B. N. A. Act on this ques- 
tion, it is, in my opinion, necessary to examine and compare several 
of the provisions of the Act with a considerable degree of critical 
minuteness. 

By sect. 9, the executive government and authoi-ity of and over 
Canada is declared to continue and be vested in the Queen. 

By sect. 12, "All powers, authorities and functions which under 
any Act of the Parliament of Great Britain, or of the Paiiiameiit of 



1883 

Attorney- 
Gkxku.\l 

r. 
Mkucek. 

Sup. C, 
Canada. 

Ritcliie, C.J. 






26 



PRIVY COUNCIL. 



1883 

Attorney- 
Gknkral 

f. 
Mercer. 

Sup. C, 
Canada. 

Ritchie, C.J. 



iiV.i 



tho United Kingdom of Great Britain and Ireland, or of the Legis- 
lature of Upper Car.ada, Lower Canada, Canada, Nova Scotia, or 
New Brunswick, r,re at the Union vested in or exercisealile by the 
respective Governors or Lieutenant-Governors of those Provinces, 
with the advice, or with the advice and consent of the respective 
Executive Councils thereof, or in conjunction with those Councils, or 
with any number of members thereof, or by thoao Governors or 
Lieutenant-Governors individually, shall, as far as the same continue 
in existence and capable of being exercised after the union in rela- 
tion to the Government of Canada, be vested in and exerciseable by 
the Governor-General, with the advice or with tho advice and con- 
sent of or in conjunction with the Queen's Privy Council for Canada, 
or any members thereof, or by the Governor- General individually, 
as the case requires, subject nevertheless (except with respect to 
such as exist under Acts of the Parliament of Gretat Britain or of 
the Pprliament of the United Kingdom of Great Britain and Ireland) 
to be aboli.shed or altered by the Parliament of Canada.' 

Sect. (53 provides for the appointment of executive officers for On- 
tario and Quebec necessitated, no doul't, by reason of the Union 
of Ontario and Quebec, severed by the B. N. A, Act, rendering a 
section .'siniilar t.> tliat relatin<;f to the executive government of 
Nova Scotia and New Brunswick inapplicable, viz. : Sect, 64, which 
provides that : " The constitution of the executive authority in each 
of the Provinces of Nova Scotia and New Brunswick shall, .subject 
to the provisions of tjiis Act, continue Jis it exists at the Union until 
altered under the authority of this Act," and this is again repeated 
in sect. 88. 

[G35] And for the same reason it was necessary to declare the 
powers to be exercised by Lieutenant-Governors of Ontario and 
Quebec, which is done by sect. 65, which is as follows : "All powers, 
authorities and functions which under any Act of the Parliament of 
Great Britain, or of the Parliament of the United Kingdom of Great 
Britain and Ireland, or of the Legislature of Upper Canada, Lower 
Canada, or Canada, were or are before or at the Union vested in or 
exerciseable by the respective Governors or Lieutenant-Governors of 
those Provinces, with the advice, or with the advice and consent of 
the respective Executive Councils thereof, or in conjunction with 
those councils, or with any number of members thereof, or by those 
Governors jt Lieutenant-Governors individually, shall, as far as the 
same are capable of being exercised after the Union in relation to 
the Government of Ontario and Quebec respectively, be vested in, 



"I 
■'■I 



PRIVY COUNCIL. 



27 



if the Legia- 
a Scotia, or 
ieal)le by the 
B Provinces, 
le respective 
Councils, or 
lovemors or 
line continue 
nion in rela- 
irciseable by 
ice and con- 
I for Canada, 
ndividuiUly, 
\i respect to 
Britain or of 
and Ireland) 

icers for On- 
: the Union 
rendering a 
I'ernment of 
:t. (54, which 
rity in each 
lall, subject 
Union until 
an repeated 

declare the 
)ntario and 
All powers, 
irliiiment of 
)ni of Great 
ada, Lower 
ested in or 
overnors of 

consent of 
ction with 
or by those 
I far as the 
relation to 

vested in, 



nn 



1883 



i 

s 



I 
t 



I 
I 






t'.V 

■f 






Attorney- 
General 

)•. 
Mercer. 

Sui). C, 
Canada. 



d shall, or may be exercised by the Lieutenant-Governor of On- 
tario and Quebec respectively, with the advice, or with the advice 
and consent of, or in conjunction with the respective Executive 
Councils, or any members thereof, or by the Lieutenant-Governor 
individually, as the case requires, subject nevertheless (except with 
respect to such as exist imder Acts of the Parliament of Great 
Britain, or of the Parliament of the United Kingdom of Great j^it^j^^.J. 

Britain and Ireland) to be abolished or altered by the respective 

Legislatures of Ontario and Quebec." 

And ns to the provisions for the appointment of executive officers 
for Ontario and Quebec, and declaring the powers and duties of such 
otHcers, and as to issuing proclamations before and after the Union, 
we find by sect. 134, until the Legislatures of Ontario and Quebec 
shall otherwise provide, the Lieutenant-Governors of Ontario and 
Quebec may each appoint under the great seal of the Province the 
following officers to hold office during pleasure, inter alia : tho 
Attorney-General, and in the case of Quebec, the Attorney and 
Solicitor-General ; and by sect. 135 it is provided that "Until the 
Legislature of Ontario or Quebec otherwise provides, all rights, 
powers, duties, functions, responsibilities or authorities at the pass- 
ing of this Act vested in or imposed on the Attorney-CJeneral, 
Solicitor-General (and other officers named), by any law, statute, or 
[f)36] ordinance of Upper Canada, Lower Canada, or Canada, and not 
repugnant to this Act, shall be vested in or imposed on any officer to 
be appointed by the Lieutenant-Governor for the discharge of the 
same, or any of them " 

By sect. 136 : " Until altered by the Lieutenant-Governor in 
Council, the great seals of Ontario and Quebec respectively shall be 
the same, or of the same design, as those used in the Provinces of 
Upper Canada and Lower Canada respectively, before their union as 
the Province of Canada. " 

By sect. 139 : " Any proclamation under the great seal of the 
Province of Canada issued before the Union to take effect at a time 
which is subsequent to the Union, whether relating to that Province, 
or to Upper Canada, or to Lower Canada, and the several matters 
and things therein proclaimed, shall be and continue of like force 
and effect as if the Union had not been made." 

And by sect. 140 : "Any proclamation which is authorized by 
any Act of the Legislature of the Province of Canada to be issued 
under the great seal of the Province of Canada, whether relating to 
that Province or to Upper Canada, or to Lower Canada, and which 






28 



PRIVY COl'NCIL. 



1883 

Attoknky- 
Gexeual 

r. 
Mkuceii. 

Sup. C, 
CaiKwia. 

Ritcliie, C.J. 



i:i 



i; 


1 



is not is.sue(l before the Union, may be issued by the Lieutenant- 
GoveriKjr of Ontario, or of Quebec, as its .subject-matter reniiires, 
under the great seal tliereof ; and from and after the issue of such 
proclamation, the same, and the several matters and things therein 
proclaimed, shall be and continue of the like force and effect in 
Ontario or Quebec as if the Unicm had not been made." 

As tiie Executive Governments of Nova Scotia and New Bruns- 
wick wei'e continued those provisions were not necessary as to those 
Provinces, but these various enactments and the continuance of the 
Executive Governments of Nova Scotia and New Brunswick very 
clearly shew that the provincial executive power and authority 
was to be precisely the same after as before confederation. That 
whatever executive powers could be exercised or administrative act 
done in relation to the government of the Provinces respectively by 
the Lieutenant-Governor of a Province before conlederation can be 
[037] exercised or done by Lieutenant-Governors since confederation, 
subject, of course, to the provisions of the Act, as is said, in reference 
to Nova Scotia and New Brunswick, and is expressed in reference to 
Ontario and Quebec "as far as the same are capable of being exer- 
cised after the Union." That is to sa}', that tiie Executive Govern- 
ment of the Provinces, as exercised by the Lieutenant-Governors 
and Executive Councils, until altered In' the respective Legislatures 
continue as before C(jnfederation, except so far as the executive 
powers of the Governor-General over the Dominion of Canada may 
interfere. 

TJierefore, when it is claimed that a Lieutenant-Governor and 
Council are not comoetent to deal with a matter or ilo an executive 
administrative act that was witliin their competency before confed- 
eration, the burthen is cast on those putting forv^'ard such a claim 
to shew clearly from the B. N. A. Act tliat by express language or 
l>y necessary implication tlie Local Governmenls have been denuded 
of that authority, and the power has been placed in the executive 
authority of the Dominion. Special pains appear to me to have 
been taken to preserv; the autonomy of the Provinces, so far as it 
could be consistently with a federal luiion. 

To .say then that the Lieutenant-Governors, because appointed by 
the Governor-General, do not in ai\y sense represent the Queen in 
the government of their Provinces is, in my "pinion, a fallacy ; they 
represent the Queen as Lieutenant-Governors did before confedera- 
tion, in the performance of all executive o*" adnnnistrativo acts now 
left to be performed by Lieutenaut-Govei'iors in the Provinces in 



f 



PIUVY COUNCIL, 



2& 



Liieuteiiant- 


1-M 


er requires, 


4 


jsiie of such 


' M 


ngs therein 


'€ 


id effect in 


Sew Bruns- 


1 


as to those 


".-* 


lance of the 


M 


iswick very 


fl 


(I authority 


9 


tion. That 


9 


istrative act 




lectively bj' 


9 


xtion can be 


9 


n federation, 


S 


in reference 


-fl 


reference to 


fl 


being exer- 


"1 


ive Govern- 


'9 


t-Governora 


fl 


jc^ishiturea 


fl 


3 executive 


9 


anada may 


1 


veriior and 


1 


11 executive 


9 


ore conl'ed- 


'IB 


jch a claim 


9 


aiij^uage or 


ij^^H 


■n denuded 


9 


e executive 


9 


ue to have 


WM 


far aa it 


fl 


)ointc<l by 


m 


! Quet'n in 


.^9 


lacy ; they 


9 


confcdera- 


'^1 


acts now 


fl 


•ovinces in 


';'^H 



Attokney- 

(tKNKKAL 
V. 

Mkkcer. 
Sill), c., 

Canada. 



the name of the Queen ; and this is notably made apparent in sect. 1883 

82 which enacts that "the Lieutenant-Governor of Ontario and 

of Quebec shall from time to time, in the Queen's name, by instrument 

[G;58] under the great seal of the Province summon and call together 

Iho Legislative Assembly of the Province ;" and with reference to 

which matti-r, nothing is said in respect to Nova Scotia and New 

Brunswick, the reason for which is obvious ; the executive authority j^j^^.^^^^ j 

at confederation continuing to exist, the Lieutenant-Governors of 

those Provinces were clothed with authority to represent the Queen, 
and in her name call together the Legislatures ; and also in the 
section retaining the use of the great seals, for the great seal is never 
attached to a document except to authenticate an act done in the 
Queen's name, such as proclamations summoning the Legislatures, 
commissions appointing the high executive officers of the Province, 
grants of the publ'c lands, which grants are always issued in the 
name of the Queen, under tlie Provincial great seals. 

These being the diiect enactments in the matter of the executive 
powers of the D iminion and the Provinces respectively, it is well to 
look at the distribution of legislative powers ; and as to all matters 
coming within the classes of subjects enumerated over which 
the exclusive legislative authority of the Parliament of Canada 
is declare I to extend, there is not to be found one word expressing 
or implying the right to interfere with provincial executive, 
authority or property or its incidents, whereas, in the enumeration 
of the matte.s coming within the classes of subjects in relation to, 
which the Provincial Legislatures may exclusively make laws, we 
hnd, No. 1, " Tlie amendment from time to time, notwithstanding 
anything in this Act, of the Constitution of the Province, except as 
regards the office of Lieutenant-Governor ;" and from this, I think, 
a fair inference may be drawn, that as the Lieutenant-Governor 
under certain circumstances and in certain matters having refert nco 
to provincuJ adnunistration represents the Crown, the Provincial 
Legi-ilatures ai-e not permitted to iliterfore with this office ; No . 5. 
[G39] 'The management and sale of the public lands belonging to 
the Province, and of the timber and wood thereon ; No, 113. " Pro- 
pcvty and civil rights in the Province" and No. 16. " Generally all 
matter.! of a inei ely local or private nature in the Province. " When 
we come to the clauses relating to " revemies, debts, assets, taxation," 
we find, sect. 102, creatio-i of a Co'isolidated Revenue Fund : "All 
duties and revenues over which the respective Legislatures of Canada, 
Nova Scotia and New Brunswick, before ai'd at the Union^ had and 



,1 



30 



PRIVY COUNCIL. 



1883 

Attornky- 
Genkkal 

V. 

Mekcer. 

Sup. C, 
Canada. 

Ritchie, C.J. 



have power of appropriation, except such portions thereof aa are by 
this Act reserved to the respective Legislatures of the Provinces, or 
are raised by them in accordance with the special powers conferred 
on them by this Act, shall form one Consolidated Revenue Fund, 
to be appropriated to the public service of Canada in the manner and 
subject to the charges in tuis Act provided." 

And as I understand the argument, the words "all duties and 
revenues" in this section are mainly, if not entirely, relied on as 
vesting in the Dominion the right to escheated estates. 

In reading sect. 102 one canuot, in view of the argument whic i 
has been so strongly pressed upon us, but be struck with the clear 
indication that the words "all duties and revenues" are to be read 
in a limited sense, and are nut to apply to all revenues of every na- 
ture and description, because in the first place the words are conhned 
to those " over which the respective Legislatures of Canada, Nova 
Scotia and New Brunswick, before and at the Union had and have 
power of appropriation, " and a: e expressly restricted by the excep- 
tion of "such portions thereof as are by this Act reserved to the 
respective Legislatures of the Provinces, or are raised by them in 
accordance with the special powers conterred on them by this Act." 
This establishes, to my mind, in the most unequivocal manner, not 
only that the duties and revenues referred to were to be confined to 
[640] those over which the Legislatures had power of appropriation, 
but that with equal clearness the Parliament thereby recognised the 
existence of revenues other than those over which the Legislature 
had the power of appropriation to which the words were not to 
apply, and also that of those revenues over which the Provincial 
Legislatures had power of appropriation there were reserved portions 
thereof to the respective Legislatures of the Provinces, and which 
by the express terms of the section are expressly excepted in like 
manner as are those to be raised by the Local Legislatures in accord- 
ance with the special powers conferred on them by the Act ; and all 
doubt on this point is set at rest by the provision for the Provincial 
Consolidated Revenue Funds. In that section this excepted portion 
is thus dealt with : (Section 120.) " Such portions of the duties and 
revenues over which the respective Legislatures of Canada, Nova 
Scjtia and New Brunswick had before the Union power of appro- 
priation, as are by this Act reserved to the respective Governments 
or Legislatures of the Provinces, and all duties and revenues raised 
by them in accordance with the special powers conferred upon them 



PRIVY COUNCIL. 



81 



Bof as are by 
Provinces, or 
era conferred 
'enue Fund, 
manner and 

1 duties and 
relied on as 

iment whic i 
ith the clear 
re to be read 
of every na- 
are confined 
uiada, Nova 
lad and liave 
y the excep- 
erved to the 
by them in 
jy tliis Act." 
manner, not 
i confined to 
ipropriation, 
cognised the 
Legislature 
were not to 
Provincial 
ved portions 
and which 
ted in like 
IS in accord- 
Let ; and all 
Provincial 
ted portion 
duties and 
lada, Nova 
of appro- 
jvernments 
nues raised 
upon them 



by this Act, shall in each Province form one Consolidated Revenue 
Fund, to be appropriated for the public service of the Province." 

Here we see that while by sect. 102 the duties and revenues are 
confined to those over which the respective Local Legislatures had 
power of appropriation, subject to the exception therein contained, 
this sect. 120 recognises as having been reserved, not only duties and 
revenues to the Legislatures of the Provinces, but expressly speaks 
of duties and revenues reserved to the respective Governments as 
well as Legislatures of the Provinces ; and especially in view of the 
very strongly urged argument by Mr. McDougall, that the revenues 
should be at the disposal of the Dominion Executive to be granted 
by the representative of the Crown to those having moral claims on 
the intestate (in this case his illegitimate son), the last words of 
sect. 102 would seem to shew that the revenues therein referred to 
[641] are not revenues thst lial been or were to be disposed of, 
because the language is, " shall form one Consolidated Revenue 
Fund, to be appropriated for the public service of Canada in the 
manner and subject to the charges in this Act provided ;" and as to 
the appiopriation of this Dominion Consolidated Fund, alter, by 
sect. 103, 104 and 105, charging the same with the costs, etc., of 
collection, etc., the interests of the Provincial public debts, etc., the 
salary of the Governor-General, the appropriation from time to time 
is, by sect. 100 ihiis provided for : " Subject to the several payments 
by this Act charged on the Consolidated Revenue Fund of Canada, 
the same shall be appropriated by the Parliament of Canada for the 
public service," thereby ignoring any right in the Executive to deal 
witli this fund in the manner the Crown dealt with the hereditary 
revenues of the Crown, or in any manner other than through the 
instrumentality of Parliament, and therefore the provision would 
work in a manner the exact opposite of that for which Mr. McDougall 
contends ; for if escheated estates are held to continue to form part 
of the Provincial public property, and to be dealt with after con- 
federation as it was before, as the Provincial Executives before con- 
federatior granted such estates like all other public lands without the 
uiterveulion of the Legislatures, they would still be in a position to do 
so, and so to deal with equitable aud moral claims aa sect. 3 of the 
New Brunswick Act contemplates the Crown aa represented by the 
Provincial Executive ahould do ; but if these estates pass under the 
words duties and revenues, and are to form part of the Consolidated 
Revenue Fund of Canada, they are withdrawn from executive con- 
trol aud must be appropriated, as it is enacted the Conaolidated 



1883 
Attokney- 

tiKNERAL 

V. 

Meik'ek. 

Sup. C, 
Canada. 

Ritchie, C.J. 



32 



PRIVY COUNCIL. 



1883 

~— /-^ 

Attornky- 
Geneual 

V. 

Mercek. 

Sup. C, 
Canada. 

Ritchie, C.J. 



im 



F;uid of Canada shall be, by the Parliament of Canada, for tl-.e pub- 
lic service of Caaada. In looking through the Act wfe look in vaia 
[042] for any Provincial revenues granted to the Dominion but those 
from which the revenues intended to be reserved to the Provinces 
are expressly exempted ; and though there are no duties or revenues 
in express specific terms reserved to the Legislatures of the Provinces 
of Ontario and Quebec, Nova Scotia and New Brunswick, nor to the 
Provinces individually, if we exempt the lumber dues in New Bruns- 
wick, as by this Act it is cl< ly expressed that there were revenues 
intended to be, and that are reserved to the Provinces, the irresis- 
tible inference is, that there must be revenues which arise from or 
are incident to or growing out of the property reserved to the Prov- 
inces. If we refer to the provisions with reference to the distribu- 
tion of Provincial property, we find that as to the Dominion, by 
sect. 107, "All stocks, cash, banker's balances and securities for 
money belonging to each Province at the time of the Union, except 
as in this Act mentioned, shall be the property of Canada, and shall 
be taken in reduction of the amount of the respective debts of the 
Provinces at the Union ;" and by sect. 108, " The public works and 
property of each Province enumerated in the third schedule to this 
Act shall be the property of Canada." 

"The Thiud Schedule. 
" Pruvinckil Public Works and Propertu to he the Property of Canada. 

1. Canals, with lands and water-power connected therewith. 

2. Pnblic harbours. 

3. Lighthouses and piers and Sable Island. 

4. Steamboats, dredges and public vessels. 

5. Rivers and lake improvements. 

G. Railways and railway stocks, mortgages and other debts due by 
Uailway companies. 

7. Military roads. 

8. Custom houses, pos*-offices, and all other public buildings, ex- 

cept such as the Goverunienc of Canada appropriate for the 
use of the Provincial Legisl.itures and Governments. 

9. Property transferred by the Imperial Government and known 

as Ordnance property. 
10. Armouries, drill sheds, military clothing and munitions of war, 

and lauls set apart for general public purposes." 
[043] These .".re all the provisiois to be found in reference to the 
vesting of Provincial property in the Dominion. With respect to 



PRIVY COUNCIL. 



33 



for tl;e pub- 
look in vaia 
on but thoso 
le Provinces 
} or revenues 
lie Provincea 
ik, nor to the 
New Bruns- 
ere revenues 
, the irresis- 
irise ffom or 
to the Prov- 
the distribu- 
ominion, by 
lecurities for 
uion, except 
da, and shall 
debts of the 
lie works ami 
edule to thia 



1/ 0/ Canada. 
3with. 



jbts due by 



ildiugs, cx- 

iate i'or the 

its. 

and known 

ona of war, 

once to the 
respect to 



■3» 



I 









the Provinces, sect. 117 provides that "The several Provinces shall 
retain all their respective public property not otherwise disposed of 
in this Act, subject to the right of Canada to assume any lands or 
public property required for fortifications or lor the defence ot the 
country." Sect. 109 provides that " All lands, mines, minerals and 
royalties belonging to the several Provinces of Canada, Nova Scotia 
and New Brunswick at the Union, and all sums then due or payable 
for such lands, mines, minerals or royalties shall belong to the sev- 
eral Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, 
in which the same are situate or arise, subject to any trusts existing 
in respect thereof, and to any interest other than that of the Pro- 
vince in the same." 

The executive and legislative powers of the Dominion are large, 
and so ot" necessity should be, and while it behoves all Courts in the 
Dominion to recognise and give full force and eflfect to all executive 
and legislative acts within the scope of such powers, it is at the same 
time equally the duty of all Courts, especially this appellate tribu- 
nal, to recognise and preserve to the executive governments and 
Local Legislatures of the Provinces their just rights, whether poli- 
tical or proprietary, and not to permit the Provinces to be depiived 
of their local and territorial rights on the plea that Lieutenant- 
Governors in no sense represent tbe Crown, and therefore all 
seignorial or prerogative rights, or rights enforceable as seignorial 
or prerogative rights, of necessity belong to the Dominion. 

While I do not think it can be for a moment contended that the 
Lieutenant-Governors under confederation represent the Crown as 
the Lieutenant-Goveriurs before confederation did, I think it must 
be conceded that Lieutenant-Governors since confedi'vation do [644] 
represent the Crown, though doubtless in a modified manner. 

In my ojjinion it was not intended by the B. N. A. Act to deprive 
the Provinces of the executive and legislative control over the public 
property of the Province, or the incidents of such property, or other 
matters of a purely local nature, except such as are specifically taken 
from them, and that within the scope of the executive and legis- 
lative powers confided to the Dominion and Provinces respectively 
thuy are separate and independent, neither having any right to in- 
terfere with or intrude on those of the other ; and while I find a 
clear expressed intention of Parliament to continue to the Provinces 
all proprietary and territorial rights in all "their respective public 
properly " not specifically disposed of by the Act which belonged to 
them at confederation, and which the term "public property," as 



1883 

Attorney- 
Gknekal 

v. 
Mkucer. 

L5up. C, 
Canada. 

Ritchie, C.J. 



'4 .' 

I- 
1 





1883 

Attorn EY- 
Genkkal 

V. 

Mkrcku. 

Sup. C, 
Caiiiuia. 

Ritchie, C.J. 



34 



PRIVY COUNCIL. 



used in the 117 th sect, in connection with the other sections of the 
Act to which I liave referred, I think may be re<ad as covering all 
proprietaiy rights and incidents of property of every nature and 
description, I can find no such clear indication of the intention of 
Parliament to denude the Provinces of those incidents in the nature 
of reversions pertaining to their proprietary rights in the public 
property, suc'i as are escheats, and to transfer them to the Dominion 
Government to be disposed of as part of the consolidated revenue of 
the Dominion by the Parliament of the Dominion. 

I cannot bring my mind to the conclusion that it was intended 
that the lands and their accessories or incidents should be separated 
and the lands should belong to the Provinces and the reversionary or 
accessory interest to the Dominion ; that though the Crown has 
surrendered all its rights in the property and the revenues derivable 
therefrom to the Provinces, when the land escheats for want of [655] 
heirs, and the property reverts to the original grantor, it is not to 
revert to be held as it was at the time of the grant made for the 
benefit of the Province, but for the benefit of the Dominion which 
never had any interest in the lands whatever ; that while the Pro- 
vinces are to retain their public property and have the management 
and sale of the lands and of the timber and wood thereon, the pub- 
lic property and lands, reinvesting by reason of the want of heirs, 
should become the property of the Dominion, and so there should 
be, growing out of and residting from the tenure of the public lands 
belonging to the Provincts, public lands belonging to the Dominion, 
and subject to its legislation. 

I do not think, from a most careful consideration of the B. N.A. Act, 
that it could have been the intention of Parliament that while the 
public loroperties, and the revenues and proceeds from the di.sposition 
thereof, should be retained by the Provinces, and they so continue to 
retain the position occupied by the surrender to them of the Crown 
rights, that on escheat, the escheated lands should not revert to the 
Province, but instead thereof should belong to the Dominion, and so 
the managemei:t, conti'ol and disposition of what are commonly 
called the Crown lands or public domain in the Provinces conse- 
quently be divided, by the withdrawal of the escheated lands from 
the control of the government and legislation of the Provinces, and 
ves-ted in the Parliament of the Dominion. I find no expressions in 
the B. N. A. Act that the Dominion were to be proprietors by virtue 
of the Act of any Crown lands in the Provinces or any legislative 
puv,\ r granted theui to deal with any such lands, excepting always the 



m 



PRIVY COUNCIL. 



35 



properties fipecially named, such as beacons, lighthouses ami Sahlo 
Islaml, laiKis re-.ervdl for the Indians and public works nnd ]>ru- 
perty specifically enumerated in the third Schedule, togftiier [()-4f»] 
with such other Provincial lands and public i^roperty as the Doii>inion 
may r quire and assume for fortifications or for the defence of the 

country. 

The Crown having surrendered to the Provinces the Crown lands 
and all casual and territorial revenues incident thereto, or growing 
thf-reout, the Provinces, so far as the original ownership and beue- 
ficiiil interest in the lands and the incidents thereof is concerned, 
have by such surrender been placed in the position of the Crown, 
and therefore when lands granted ceasb to have any owner propter 
defectum sanguinis, or propter delictum tenentis, they revLrt to the 
Crown, the original grantor, but to be held as the property and for 
th.; benefit of the Provinces. 

This was so at cod federation ; the B. N. A. Act in no way changed 
the tenure by which these lands were held ; on the contrary, it was 
enacted the several Provinces aliould retain their jjublic property, 
and, as a nt^cesaary consequence, their incidents and reversionary 
interest therein. If the Crown has then surrendt^red the land and 
its reversionary interest therein to the Provinces, as no interest in 
the land has been vested in the Dominion, it is difiicult to under- 
stand how they could have a reversion in such lands ; in fact, it is a 
contradiction in terms to say that the lauds never owned by the 
Dominion could revert to it by reason of a failure of heirs, or 
propter delictum tenentis ; and surely nothing but the most un- 
equivocal words could prevent the land from reverting to the 
original grantor to be held for the benefit of the Province, to whom 
• he lights of the Crown, the original grantor, had been surrendered ; 
in other worJs, to I e placed in the same position and held by the 
Crwwn for ihe benefit of the Province ai if they never liad been 
grantt'J. When then the property reverts to the Crown, I can 
[647] discover nothing in this to change the purposes for winch, 
under the surrender by the Crown to the Provinces, it was to be 
held by the Crown as represented by the Lieutenant-Governor and 
the Executive of the Provinces respectively. 

I think the terms "all duties and revenues," in sect. 102, under 
which it is claimed these escheated estates pass to the Dominion, 
refer to the ordinary duties and revenues, such as customs, impost 
and excise, and the like, which were at the sole disposal of and 
flubject t(j direct appropriation by the Li-gislaturo, and not lands 



1883 

Attouney- 
Gkxf.ual 

r. 
Mekcer. 

Su].. C, 
Canada. 

Ilitcliie, C.J. 



36 



PRIVY COUNCIL. 



1883 

Attornev- 
Gbnekal 

V. 

Merger. 

Sup. C, 
Canada. 

Ritchie, C.J. 



which by accident fall to the lord, or those representing the lord, aa 
is said by Coke (1), ' ' Escheat is a word of art, and derived from the 
French word escheat(id est)cadere, excidere or accidere, and signifieth 
properly when by accident the lands fall to the lord of whom they 
are holden." In other words, not casual, accidental or extraordinary 
revenues which come in the shape of land, and which lands are 
managed and granted and disposed of by the Executive without the 
intervention of the Legislature, and under certain circumstancea 
without even the proceeds being subject to legislative action, aa in 
the case of lands donated to those who may by reason of connection 
with the deceased or other reasons have a special claim on the 
clemency and favour of the Crown represented by the Provincial 
executive. 

Very strong observations were made as to the manner in which 
the Government of Ontario had dealt with a portion of this estate 
and would probably de.al with that in controversy, if it was now 
decided that the disposition of the estate belonged to the Provincial 
Government. With considerations of this kind we have clearly 
nothing to do. Though very pointedly and earnestly put forward 
by Mr. McDougall, in his very able and ingenious address, that 
those connected with the estate, and who had therefore a moral or 
equitaole claim to consideration, would be seriously aggrieved and 
[647] injured by holding that the disposition of an escheated estate 
belonged to the Provincial and not to the Dominion authorities, this 
proposition has not commended itself to my mind in the way it 
appears to have so forcibly impressed Mr. McDougall, because I 
can see no reason whatever why in a case such as this the Provincial 
executive should be guided or should act on any different principle 
whatever in regard to the disposal of escheated estates from those 
that would govern the Dominion executive ; on the contrary, it 
seems to me that precisely the same principles and considerations 
that should influence and govern the one should guide and determine 
tbi action of the other ; and it must be borne in mind tliat there 
m .y be many escheats where no circumstances exist calling for any 
special action, and therefore in the older books we find it stated, 
" that it is the ordinary course for the Crown ripon petition to give a 
lease or grant to the party discovering an escheat with a view to en- 
courage discovery" (1 Chitty's Gen. Pr. 280, citing 7 Ves. 71, and 
6 Ves. 809). 



(l)Lib. I.,c. 1,8. 4(13ed.). 



PRIVY COUNCIL. 



87 



For these reasons I think the conclusion arrived at by the Court 
of A]>peal of Ontario is correct, and this appeal should be dismisspd 
with costs. 

Strong, J., concurred with the Chief Justice. 



188.3 

Attorney- 
General 

V. 

Mercer. 

Sup. C, 
Canada. 

Ritchie, C.J, 



[Translated.] 
FOURNIER, J.: — 

The question to be decided in this case is whether the government 
of Ontario or that of the Dominion is under our existing constitution 
entitled to escheated property. Everyone agrees in recognising that 
escheat (la desherence) is a royal prerogative which can only be exer- 
cised by the Queen herself or by those to whom she lias specially 
delegated her powers in this behalf. 

Whiitever may be the origin and nature of escheat it must be ad- 
mitted that in the Province of Ontario where the feudal system has 
[049] never existed it is less an incident of the tenure of land than 
a fiscal prerogative granted to the Sovereign by the English con- 
stitution as a source of revenue. It is thus that Blackstone (1) 
styles it, classing it among the diflerent sources of revenue of the 
S<jvereign : "The Kings Jincal prerogatives, or such as regard his 
revenue ; which the British constitution has vested in the royal 
person, in order to support his dignity and maintain his power. " 

On page 303 at paragraph 17 he defines as follows the pre- 
rogative of escheat: "Another branch of the king's ordinary 
revenue arises from escheats of lands, which happen upon the defect 
of heiis to succeed to the inheritance ; whereupon they in general 
revert to and vest in the king, who is esteemed, in the eye of the 
law, the original proprietor of all the lands in tlie kingdom. " 

This authority establishes three propositions of importance for the 
decision of the question under consideration — (1) that escheat is a 
royal prerogative ; (2) that it is a source of revenue to the Sovereign ; 
(3) that in the eye of the law the Sovereign is considered the original 
proprietor of all the lands in the kingdom. 

In the legislation prior to the Imperial Statute 1 Wm. IV. c. 25, 
the provisions relating to escheat or the appropriation of the pro- 
perty and revenue arising therefrom have not affected the preroga- 



.iir 



(1) Vol. 1, p. 281. 



T 



38 



TRIVY COUNCIL. 



1888 

Attounkv- 
Genekal 

!•. 
MEKtElt. 

Sup. C, 
Caiiiula. 

Fournier, J. 



tive of the Crown. The Statutes 39 it 40 Geo. II [. , 59 Geo. III. and 
Wm. IV. weie not j assed in order to vest in the Crown any now 
rij,'ht8, nor yet to diminish tliose wliicli it already possessed over that 
kind of property, but to facilitate their exercise. This properly 
is not regarded in any other light than as that of the Crown. 
The 59 Geo. III., c. 94, s. 3, declares that the surplus from the sale of 
this property, after the execution of the orders of His Maje.'^ty, 
[050] "shall be paid to the Commissioners of His Majesty's land 
Revenue." The prerogative is left uutouohed, and the property 
arising therefrom i-'-'tauis its character of rf.'venue. 

It was only by the 1 Wm. IV. , c. 25 that the destination of this 
source of revenue as well as the 'ther rights, hereditary, casual, terri- 
torial and others specially attached to the Cnnt-n was alienated in 
exchange for the civil list. It was during the continuance of that reign 
to form part of the consolidated fund of the United Kingdom, under 
the conditicms and reservations specified in this Act, one of these 
conditions is thus expressed : " It being the true intent and meaning 
of this Act tliat the said rights and powers shall not in any degree be 
abridged, restrained, affected or prejudiced in any manner whatso- 
ever, but only that the money accruing to the Crown after the full 
and free exercise of the enjoyment of the said rights and powers, 
subject as aforesaid, shall, during His Majesty's life time, be carric^d 
to and made part of the consolidated fund of the United Kingdom." 
Such is still in virtue of the provisions of the Imperial Act, 1 & 2 
Vict., c. 2, the disposition of the rights and revenues specially 
attached to the Crown and among others those arising from escheat. 

The first change made in the appropriation of the hereditaiy re- 
venues of the Crown, in the Provinces which now form the Dominion 
of Canada, was introduced by the Act of New Brunswick, Con. Stat. 
N.B., Tit. 3, c. 5, the provisions of which are almost the same as 
those of the 1 Wm. IV., c. 2.'). Similar provisions were afterwards 
inserted in the Act of Union of Upper and Lower Canada in 1840. 
At a later date these were modified by the subsequent statutes cited 
in detail in the argument of the learned counsel for the appellaiit. 
It follows from the condition of the legislation at the time of Con- 
federation that the revenues arising from escheat belonged at the 
time of the passing of the B. N. A. Act to united Canada. This 
[651] proposition being admitted on all sides even by the learned 
counsel for the appellant nothing more remains than to determine 
whether the B. N. A. Act has not disposed of it as of the other 
Provincial revenues in favour of the Federal Govei nnient. 



PRIVY COUNCIL. 



59 



In my opinion the decision of the qnestion under consideration is 
to lie found entirely iu sect. 102, which is thus expressed; "All 
duties and revduues over which the respective legislatures of Canada, 
Nova Scotia and New Brunswick bi'fore and at the Union had and 
have power of appropnation, except such portions thereof as are by 
this Act reserved to the respective legislatures of the Provinces, or 
are raised by them in accordance with the special powers conferred 
on them by this Act, shall form one Consolidated Revenue Fund, to 
be niipropriated for the public service of Canada in the manner, and 
subject to the charges, in tliis Act provided." 

According to this section, all the duties (tons les droits) iind 
revenues at the dispostal of tlio legislatures are to form tlie con- 
s'llidated revenue fund of Canada, subject to the two exceptions 
tluivin mentioned. 

Property arising from escheat forms witliout doubt a source of 
public revenue, since the Crown has alienated it in virtue of the laws 
rtsiiccting the civil list ; this revenue must be included iu the grant 
made to the Dominion in geneial terms of all the duties and revenues 
of the Provinces. Tlie only exception to this general disposition 
made in favour of the Provinces is that of the revenues which are 
reserved to them by the constitutioiuxl Act, and which they can raise 
in virtue of the special powers therein conferred on them. Sect. 
12(i, which creates the Consolidated fund of the Provinces, declares 
that it shall be composed of the duties and revenues over which 
before the Union they had power of apjiropriation, and which are 
reserved to the respective governments or legislatures. These two 
sections agree in declaring that all the revenues of the Provinces 
except those which are specially reserved to tliem by the constitu- 
tional Act shall belong to the federal consolidated fund. In order 
[C5'2] to nuiintain that the revenue arising from escheat belongs to 
the Provinces, it would then be necessary to find in the constitutional 
Act a reservation to that effect, whereas there is no such reservation. 
The sources of revenue of the Provinces are pointed out in sub-sects. 
2, 3 and 9 of sect. 92, and in sect. 118, which grants a subsidy to each 
Province, — but none of these sections contains any special reserva- 
tion which can possibly include the revenue arising from escheat. 
Tlie only special reservation to be found is that contained in sect. 
124, reserving to New Brunswick its privilege of levying on lumber 
the duties established by one of its laws passed before the Union. 
An exception which has no other effect than to confirm the genera 
principle of sect. 102. 



1S83 

^^^-^ 

Attounkv- 
Genkual 

r. 
Mkkckk. 

Sup. C, 
Canada. 

Fournier, J. 









40 



PllIVY COUNCIL. 



1888 

Arrr RNKY- 
Gknkuaf, 

I'. 
Mehckh. 

Sup. C, 
Caiiadn. 

Fournier, J. 



In order to sui»port liia claim to the benefit of escheat the re- 
sponcloiit invokes still another pica deduced from certain dispositions 
of the B. N. A. Act. He asserts that sects. 101) and 110 have 
effected in favour of the Provinces a legislative transfer of this pre- 
rogative. 

By sect. 100 " All lands, mines, minerals and royalties belonging to 
the several Provinces of Canada, Nova Scotia and New Brunswick, 
at the Union, and all sums then due or payable for such lands, mines, 
nvinerals or royalties, shall belong to the several Provinces of 
Ontario, Quebec, Nova Scotia, and New Brunswick, in which the 
same are situate or arise subject to any trusts existing in respect 
thereof, and to any interest other than that of the Pruvinco in the 
same." 

From the declaration contained in this section that all lands and 
royalties (reserves royales) belonging to the different Provinces at 
the Union shall continue to belong to them, the respondent infers 
that the direct property (doraaine direct) of the Crown in all public 
[653] lands, has been transferred to the Pr)vince3, and that one of 
the results of this transfer, is that escheatt d property ought to re- 
vert to the Provinces. But the transfer is neither so general nor so 
'ibsolute as the respondent asserts. It is restrained and qualified by 
the expressions, *' lands, etc. , belonging, etc., at the Union." Those 
terms evidently admit of nothing more than a confirmation of the 
limited ownership of the public lands such as it then was — the 
power of the Provinces over these lands is in no way increased — no 
new p jwer is added to those which they already had — no new pre- 
rogative is granted to them. The power remained what it was 
before, as is shewn by sub-sect. 5, of sect. 92, restricted to the 
management and sale of the public lands belonging to the Province, 
and of the timber and wood thereon. 

Their power over the lands is thus actually what it was before 
confederation, and nothing more. In order to ascertain what is a' 
present this power, it is necessary to go back to the prior legislation, 
as well imperial as provincial, on this subject. From the examina- 
tion which I have made of this legislation, of which Mr. Justice 
Gwynne has made so exhaustive a statement that it would be useless 
to go over the siibject again, I am driven to the conclusion that the 
power of the Provinces over the public lands has not been increased 
by sect. 109. It is as it was before confederation, a power of 
management, the Crown never having parted by any imperial or 
provincial Act in favour of any one, with the direct pi'operty 



PRIVY COUNCIL. 



41 



11(5 have 


P 


t tliis pre- 




longing to 


^1 


runswick, 


■■ ■ ■'. 


ds, mines, 


V ■..'■ 


)vince8 of 


>; 


whicli the 


■ - 


ill respect 


m 


nco in the 




lands and 


KlT.Sa 


evinces at 




ent infers 




all public 




lat one of 




ght to re- 


jm 


ral nor so 


^ 


lalitiod by 


J 


" These 


'Is 


on of the 


4 


was — the 


-1 


sased — no 


% 


new pre- 


M 


at it was 


'M 


id to the 




Province, 




is before 




vhat is a 




gislation, 




Bxamina- 




. Justice 




)e useless 




that the 




ncreased 




power of 




perial or 




property 





(doiuaino direct) belonging to it in the public lands. In this case, 
it is to the Queen as having still the direct property in the lands 
tliiit escheated property should revert, if this right is to be regarded 
as an incident of the tenure of land rather than as a prerogative of 
the Sovereign. 

[().j4] But the Province of Ontario never having been subject to 
the feudal system, it is not to the Sovereign as lord of the manor 
(seigneur) but by the royal prerogative of Sovereignty that the right of 
revor>!ion ])roperly l)elongs, by force of the principle which, as Black- 
stone saya, raises the presumption that he is proprietor of all the lands 
of the kingdom. It is doubtless for this reason that under our present 
constitution grants of public lands are still made in the name of the 
Qucon. In any case, the argument of reversion founded on the 
feudal system, if it admitted of application to the Province of 
Ontirio, could only affect immoveable property. What in this case 
becomes of moveable property ; to whom will it revert / Is the pre- 
rogative to be divided according to the nature of the property, — are 
the immoveables to belong to the Provinces and the moveables to the 
Dominion ! This question is sufficient to demonstrate the flaw in 
the argument founded solely on the right of reversion as an incident 
of the feudal tenure. It is more logical to recognise that it is in 
virtue of the royal prerogative that the Sovereign has a right to 
benefit by every kind of escheated property. 

Moreover, supposing that the transfer of the lands was absolute, I 
hardly understand how it could by itself involve the alienation of a 
prerogative attached to the person of the Sovereign : It is a well 
established principle that all legislation affecting the royal prero- 
gatives must be formal and express, or result at least from dis- 
positions which necessarily imply that the legislator intended to 
j< "'ify thora. 

Thi4 principle, so often asserted by the decisions of the Courts in 
Ensr' id, has again been quite recently reaffirmed by the Privy 
Coui.^il in the case of ThSberge v. Landry (1). 

There is plainly in clause 109 no expression concerning the pre- 
rogative nor are its provisions of a nature which necessarily raise a 
presumption that has been alienated. 

[055] The argument founded on the expression "royalties" in 
the same sect. 109, which was approved in the case of CJmrch v. Blake 
(2) seems to have been abandoned by the learned counsel for the re- 



1883 

Attoknkt- 
(Jknkual 

1'. 
Mkucku. 

Sup. C, 
Canada. 

Fournier, J. 



M 



(1) 2 App. Cas., i02 ; ante, Vol. 2, p. 1. (2) 2 Quebec Law Rep. 236. 



w 



42 



PRIVY COUNCIL. 



1883 

Attoun'ey- 
Genkhal 

1-. 
Meucer. 

Sup. C, 
Canada. 

Fournier, J. 



spondent. In fact, the term " royalties" is not there used to signify 
the powers or attributes of royalty. Tlie explanatif)n which has been 
given of this term by the learned counsel for tlie appellants is the 
only correct one. It is evident that this expression refers solely to 
the rights of percentage or commission which the Crown received 
before confederation in the Provinces of Nova Scotia and Np' 
Brunswick in respect of mining grants. For these reasons, sect. 109' 
does not appear to me in any way to touch the prerogative in cjuestion. 

Anotlur r i-gument which has been adopted in this case, and which 
does not seem to me more conclusive than that based on sect. 109, is 
one drawn from the power of the legislatures over property and 
civil rights. Escheat being an interruption o: the succession, and 
the Sovereign only taking tlie property as idtimua hreres, the legis- 
latures can, it is said, change this order of succession. But escheat 
is a mattur of prerogative and not a question of property or civil 
right. Besides, the existing order oi succession admitting this pre- 
rogative in favour of the Sovereign, it would be necessary to shew 
that the power of legislating with respect i.o royal prerogatives 
belongs to the legislatures. This is only going back i,gaintothe 
question with whom rests the sovereign authority under the exist- 
ing constitution, over the subjects of legislation not specially dele- 
gated, a ([uestion on which I Iiiive already had occasion to give my 
opinion. I do not think it necessary to return to this ([uestion, for 
I think sect. 102 is enough to determine the question under con- 
sideration. 

[656] Having read the very elaborate judgment of Mr. Justice 
Gwynne I have contented mys-lf with indicating shortly the grounds 
of my agreement with his conclusions, I am therefore of opinion that 
the appeal should bo allowed. 



Hf.nrv, J. : 

Having fully ccmsidered the interesting and liighly important 
interosts involved in the discussion and decision of this case, I shall 
now briefly state the conclusions at which I have arrived. 

On the part of tlie respondent it is claimed that on the failure of 
heirs of Andrew Mercer, who died intestate, the Province of Ontario 
became entitled to his estate — both real and ^jersonal — as legislative 
assignee of the Crown. 

On the part of the appellants it is contended tliat no such assign- 
ment was made, but that, by the B. N. A. Act, the a&signment, if 
any, was to the Dominion. 



PRIVY COUNCIL. 



43 



If, therefore, the claim of the respondent be not sustained, our 
jiulgnient must be for the appellants, whether or not the Dominion, 
by the Act in question, became entitled to the position claimed for 
Ontario. 

If the majority of the Court should be of the opinion that the 
respondent's claim cannot be allowed, it will be unnecessary, in niy 
opinion, to consider the proposition advanced by the appellants, 
that the assignment was to the Domini(m. It has been contended 
in otlier cases that plenary le;ii8lative jiowers were given by the Act 
mentioned over all subjects and for all objects, either to the Parlia- 
ment of Oanad.'. or to the se^ ral Legislatiires. I have, in at least 
one of my judgments, refu'^ed to admit the cor.octness of that pro- 
position ; and have hold that we must look to the Act and trace to 
[057] ii; the right to higislate in reg.ird to every matter arising for 
decision. If we alwr.ys keep iii view tlie consideration that t!\o 
whole legislative power is given by it, and by it alone — a i)osition 
retjuiring no argument to sustain — and determine from that the 
existence of any legislative power claimed, the solution will, to th:it 
extent, be easier, and the dcoiiinii raoro likely to be correct. There 
are, no doubt, many subjects given fully, eitlicr to the Dominion or 
to the Local Legislatures, oi- in part to eacli, wherein it is manifest 
the one or the two, each of the part allotted to it, should have legis- 
lative power to deal wiLh the whole of such subjects ; but although 
that may be properly said to be the general rule, I maintain the 
existence of cases tl:,«,t should be declared exceptions. 

It is not necessary, as I have before said and for the reasons 
given, to be shewn, that the right claimed by the respondent should 
appertain to the Dominion. It may be that the latter has no such 
right ; but that conclusion, in my opinion, should have little weiglit 
in the ])resent case. To recover in tliis action, the exclusive right 
must be shewn in Ontario. Tiie ajijiellants are entitled to our judg- 
ment unless the respondent shews a valid legislative ti nsfer of the 
prerogative right in question to the Province ; and such a transfer 
as would deprive the Sovereign of the right to its future extn-cise. 
I am induced to make these suggestions, as many of the reasons for 
arriving at the conclusion that there was no such transfer to the 
several Provinces composing the Dominion apply with equal force to 
sliew there was none to the Dominion. 

I have said that we must seek from the B. N. A. Act, and fi-oui 
that ahine, for the sustainment of the respondent's claim. 
Our attention was directed at the argument to the iiositi'iu cif 



1883 

Attorney- 
Gknkkal 

V. 

Meuckh. 

Sup. C, 
Canada. 

Henry, J. 



il 



1 






m 



44 



PRIVY COUNCIL. 



1883 

Attornky- 
Genebal 

V. 

Mekcer. 

Sup. C, 
Canada. 

Henry, J. 



Canada immediately preceding the passage of the Act as regards 
[058] Crown or waste lands, and also to that of Upper Canada before 
the union with Lower Canada. Holding, however, the views I do 
as to the result of the union of the four Provinces in 1867, I am 
unable to feel that much, it' any, weight should be given to an argu- 
ment founded on the position, as touching the question under con- 
sideration, which the Provinces or any of them occupied at any time 
before confederation, except so far as the Act specially refers to such 
position. The Imperial Act was not one forced upon the Provinces 
by an arbitrary proceeding of an overruling legislative body, de- 
priving them, or any of them, of legislative power. In such a case 
it might be contended that the extent of the deprivation must be 
ascertained from the Act ; and as regaris any subject or matter not 
embraced in it, the power would still remain. Here, however, the 
case is far difl'erent. The Act was passed, as it recites, on the appli- 
cation of the Provinces to give legislative sanction and authority to 
an agreement entered into on the part of the Provinces for their 
fetl"-ral union. The implied, if not expressed, princiijle acted on 
was, that all rights and privileges, including legislative as well as 
others, of each of the Provinces, should be surrendered ; and that 
each should, if the un'on were consummated, depend subsequently 
for the exercise of their rights and pi'ivileges upon the Imperial Act 
to be passed, to give effect to the agreement for union entered into. 
This is patent in the Act itself, and in the resolutions of the dele- 
gates upon which it was founded and passed. I could give many 
reasons, and shew many facts, to prove the correctness of this pro- 
position ; but it appears to me only necessary to suggest that if it 
were intended to be otherwi^^, we would reasonably expect to find 
ju'ovision made for intended exceptions. The absence of any such 
is strong presumptive evidence that none were desired. 

Sect. 102 of the Act gives to the Dominion the appropriation of 
[(559] "All duties and revenues over which the respective Legis- 
latures of Canada, Nova Scotia and New Brunswick, before and at 
the Union, had and liave power of appropriation, except such por- 
tions thereof as are Ijy this Act reserved to the Legislatures of tho 
Provinces, or are raised by them in accordance with the special 
powers conferred on them by this Act, to form one Consolidated 
Revenue Fund, to be appropriated for the public service of Canada." 

IJy the terjns and provisions of that section all the duties and 
revenues controlled before the union by the Legislatures of the 
Provinces, with the excejttiou of the portions reserved by the Act to 



i i 



PRIVY COUNCIL. 



45 



the Provinces, were clearly given to the Dominion. If, then, before 
tlie union, the right claimed by the respondent was vested in the 
Provinces, it was transferred to the Dominion by this section, unless 
we find it reserved in the Act to the Provinces. I think, therefore 
that the decision of this case should not be affected bj' the position 
of the Provinces, or by their legislation, before the union, with the 
exception I have before mentioned. If the portions of the revenues 
reserved to the Provinces cannot be construed to include the right 
in (juestion, it matters not that it can be satisfactorily and un- 
doubtedly shewn that Ontario possessed it before the union. 

The reservation to which I have just referred we find, on reference 
to the Act, to bj "lands, mines, minerals and royalties, belonging 
to the several Provinces at the Union." " Lands " and " royalties " 
need only to be referred to in this connection. As to the first, it is 
contended that by the mere transfer from the Crown to the Pro- 
vinces, the prerogative right to an escheat, on the failure of heirs, is 
transferred. The first inquiry naturally is, had tb; Province of 
Canada, before the union, that right ? If it had not, then it could 
not be a part of the reservation. It was the duty of the respondent 
to have pointed out some legislation of the Imperial Parliament 
al>oli.<hing or transferring the prerogative right of the Crown by 
[GGO] escheat over lands in the Provinces held in free and common 
socage, previc us to the accession of His Majesty William IV. ; or to 
some such statute repealing the statute passed in the first year of his 
reign, cap. 25, by which His Majesty surrendered to Parliament, to 
form part of the Consolidated Fund of the kingdom, His Majesty's 
interest in the hereditary revenues of the Crown, and in the funds 
which might be derived from any droits of the (^ ^wu or admiralty, 
from any casual revenues either in His Majesty's ..>reign possessions 
or in the United Kingdom ; and providing that, after his decease, 
all the said hereditary revenues should be payable and paid to his 
heiis and successors ; to which was added a proviso, that nothing in 
the Act should extend, or be construed to extend, in any wise to 
impair, affect or prejudice any rights or powers of control, managc- 
.^lent or direction wliich hfid been or might be exercised by autho- 
rity of the Ciown relative (amongst other things) "to the granting, 
disposing of, or leasing any freehold or copyhold property, or the 
produce or any part of the produce or amount or value of any free- 
hold or copyhold to wliich His Majesty, or any of his royal prede- 
cessors, have or hath, or shall become entitled either by escheat for 
want of heirs, or by reason oi any forfeiture . . . or to the 



1883 

Attorney- 
General 

V. 

Mehcer. 

Sup. C, 
Canada. 

Henry, J.. 



I«'i| 



c 



4G 



PKIVY COUNCIL. 



1883 

Attohney- 
Geneual 

i: 
AIeucer. 

Sup. C, 
Canada. 

Henry, J. 



granting or distributing of any personal pioperty devolved to the 
Crown by reason of the want of next of kin or personal representa- 
tives, of any deceased peison," but tiiat the same should be enjoyed 
in as full and effectual manner as if that Act had not been passed ; 
tlie Act declaring that tlie said riglits and powers should not be )j 
abridged, restraine'l, affected or prejudiced in any manner what- 
ever ; but only that the moneys accruing to the Cr.)wn, after the full 
and fiee exercise of the enjoyment of the said rights and powers, 
subject as aforesaid, should, during His JIajesty's life, be carried to 
and made part of the consolidated fund of the United Kingdom. 

[()()1] The Act of the Province of New Brunswick for the transfer 
of the hereditary, casual and territorial levenues, and of the lands, 
woods, mines and royalties, contains similar provisions as to the 
reservation of the riglits of the Crown to inake any grant or restitu- 
tion of any estate, or of the produce thereof, to which it might 
become entitled by escheat for want of heirs, etc., or to make any 
giant or distribution of any personal p.-opeity devolved to tlie 
Crown for want of next of kin, etc. , and declaring that it was only 
the moneys arising, after lUe full and fre^ exercise and enjoyment 
of the rights reserved, should be carried to and form part of the con- 
solidated revenue of New Brunswick. That Act has been le- 
enacted, and is still in force. 

It could not therefore be successfully contended that in New 
Brunswick the Local Legislature could legislate upon the subject, 
as that Province could not claim the right under the provisions of 
the B. N. A. Act, not having enjoyed or exercised any such right 
previously, but, on the contrary, expressly legislated against it. 
Having been sijecially exempted from the opeiation of the New 
Brunswick Act, it may be contended that, inasmuch as the Con- 
federation Act contains no such reservation, it was intended to pass 
the x-ight claimed ; but it will be seen that the terms of the latter 
are n(jt general, and do not apply at all to the hereditary Crown 
revenues as such, but specifically re'er to hmJs, mines, mineials 
and royalties. Tii-e agiment might be applicable to the grint to 
the Uuminion in its comprehensive terms, if the Provinces had pre- 
viously such right, but is not applicable to the specific reservation 
to the Provinces. 

Up t I the time of the union of Upp^r and L)wer Canada in 184(i, 
it cannot be claimed tliat either had any claim to control the appro- 
priations of the casual ov territorial revenues of the Crown. By the 
[(i02] Imperid Act passed to consummate that union, it was pm- 



PRIVY COUNCIL, 



47 



vidod that before any Act of the United Provinces, relating to or 
allVcting Her Majesty's prerogative touching the granting of waste 
liuuls of the Crown, could receive the royal iissent, it was ronuired 
to be laid before both Houses of the Britisli i'arlianient for thirty 
days ; and that if either house, dui-ing that period, sliould pass an 
address asking Her Majesty to withhold her assent, it would not 
tliereafter be lawful for her to give it. And also that any law 
divesting the Crown of any of its prerogative rights, and vesting 
them in the Provincial Legislature, must emanate from, or be ex- 
pressly confirmed by the Imperial Parliament. The latter pro- 
vision, I take, governed the Province of Canada up to the Confedera- 
tion Act, and when on one occasion a Provincial Act was assented 
to— as 1 presume inadvertently — without the Act having been laid 
before both Houses of Parliament as required, a ratifying Act of the 
Imperial Parliament was passed as necessary to validate it. I can 
find no legislation of the Imperial Parliament since to change that 
position of the matter. 

It is contended that, inasmuch as the "management and sale" of 
Crown lands is vested in the Local Legislatures, it is more reason- 
able to assume it to have been intended to include the right to ac- 
quire a title again by escheat, rather than that the Dominion should 
take it. That was however, a matter more for those who procured 
the passage of the Act, and for the Parliament that passed it, than 
for us. We are not to say what the provision shoxild have been, but 
what it is. If I were satisfied that the prerogative right in question 
was in reality transferred by the Confederation Act, I should be 
much more inclined to conclude that it was to the Dominion, by 
force of the general terms of the grant to it, than to the Provinces 
by the restrictive terms of the grant to them. By sect. 102 it will 
[(J()3] however be seen that the grant bo the Dominion is limited to 
the " duties and revenues over which the respective Legislatures of 
Canada, Nova Scotia and New Brunswick before and at the Union 
had and have power of appropriation." If therefore the Legislatures 
of those Provinces had not, before or at the union, the right to deal 
witli tlie subject matter now in (question, it cannot be contended 
that it passed to tlie Dominion by virtue of that section. If such 
should be found to be the case it will, I have no doubt, be found to 
make no practical difl'erence, as we have every reason to assume the 
right will be exercised by the Sovereign as recommended and sug- 
gested by her representative in the Dominion. 

The Imperial Parliament has never, as far as I have been able to 



1883 

Attorney- 
Gkneijal 

V. 

Mkroeh. 

Sup. C, 
Canada. 

Henry, J. 



id. 



1883 

Attorney- 
General 

t'. 
Mercer. 

Sup. C, 
Canada. 

Henry, J. 



48 



PRIVY COUNCIL. 



discover, attempted to deal with the peculiar prerogatives of the 
Crown until previously voluntarily surrendered by tlie Sovereign ; 
and with that now under consideration the British Parliament has 
not in any way interfered. If the Province of Ontario should be 
found right in dealing with it, a position will be attained by it which, 
as far as I can discover, has not been reached in any other part of 
Her Majesty's dominions. 

It is admitted that up to 1840 the prerogative right to escheat in 
cases like the present vested in Her Majesty the Queen. If pre- 
vious to that an estate was left without heirs, the Queen would take 
the title. She would not, however, take it merely as a source of 
revenue, for such was seldom appropriated for that purpose. Up to 
that time the title and control of all public or waste lands was in the 
Queen. The Province had no title thereto, and the patents were 
from the Queen. Under what rule or upon what principle could the 
Province claim, through an esclieat, an estate it never before owned. 
Escheat is by law defined to be " an obstruction of the course of 
[644] descent, and a consequent determination of the tenure by 
some unforeseen contingency, in which case the land naturally results 
back, by a kind of reversion, to the original grantor or lord of the fee." 
If that definition be correct, and I cannot think it will be doubted, 
then in respect of all lauds granted, or patented, previous to 1840, 
the Province could, by no possibility that I can discover, claim as 
the original grantor, or lord of the fee. If, indeed, the patent had 
been shewn to have issued since 1867, when the Confederation Act 
was passed, it might be more interesting to consider and apply to it 
the doctrine of escheat than under existing circumstances, and to 
decide whether or not the Act transferred the right claimed. If, 
however, we were expected to decide that question, it should have 
been submitted to us by evidence shewing the patent to have issued 
since the Confederation Act came into operation. That is not tlio 
case before us, and I need not speak positively as to it, but will con- 
tent myself by saying that for other reasons given, I am of opinion 
that, even in that case, the respondent would fail in sustaining his 
claims. 

It was contended on the part of the respondent that it could not 
be, that while the Afid, before being granted, was held by Her 
Majesty for the use oi the Province of Ontario, yet upon, or after, 
the grant in fee simp'.e, the reversionary estate would be held by Her 
Majesty for the use of the Dominion of Canada. The answer to that 
proposition is, that after the grant Her Majesty had no substantial 



PRIVY COUNCIL. 



49 



interest, such as a reversion on the expiration of a lease. The 
whole estate was transferred without any reserve, or any provision 
for a reversion. Her Majesty held not the smallest estate known 
to the law in it. By the unforeseen accident of the failure of heirs, 
or by a forfeiture she again becomes entitled, but in the meantime is 
neither the owner nor the trustee of any other in regard to it. She 
[665] takes it in her own right as the original grantor, having had 
before the forfeiture or failure of heirs no title whatever. By 
English law and practice she can dispose of that title when accrued 
as she pleases, independent of parliamentary control. In the large 
majority of cases, however, as others lose by the accident which 
gives her title, she refuses the personal benefit caused by it, and 
restores, or rather grants, the subject-matter to those who, but for 
the fccident, would most probably have succeeded to it. The power 
to remedy the injurious result of such an accident in many cases that 
happen, must be highly prized by any right feeling Sovereign ; and 
it is one not yet controlled by imperial legislation. It nmst, there- 
fore, have been considered wise and proper that such should continue 
to be exercised. 

On the part of the respondent it was presented to us simply as a 
matter of revenue, as between the Dominion and the Provinces. I 
view it very differently ; and think myself bound to uphold a pre- 
rogative right, the exercise of which is more likely to be less exact- 
ing than if otherwise held — and which has been so long enjoyed with 
apparent satisfaction in the United Kingdom — until it is made 
satiffactorily to appear that it no longer exists. 

I think such transfer should not be adjudged by a speculative 
construction of a doubtful statute, but by a most clear and positive 
enactment. Besides, it is a well-known rule that the Sovereign is 
bound by no statute unless specially named therein, and that any 
statute affecting adversely the prerogative rights of the Sovereign 
does not bind him unless there are express words indicative of that 
object. If that rule of law be not violated, the grant of the lands, 
mines, minerals and royalties belonging to the Provinces at the 
[666] union in 1867 cannot iio adjudged to affect in any way the 
royal prerogative througli MJiion lands, by escheat for want of heirs, 
become vested in the Sovereign. That doctrine was acted upon and 
declared in force by the Pri \y Council in a comparatively late case (1) 
and cited by the counsel of the appellants at the argument. 



1883 

Attorney- 
Genkkal 

V, 

Mercer. 

Sup. C, 
Canada. 

Henry, J. 









(1) Theberge v. Landry, 2 App. Cas. 102 ; ante, vol. 2, p. 1. 
4 



1883 

Attornky- 
Oenkual 

V. 

Meucer. 

•Sup. C, 
■Caniida. 

Henry, J. 



50 



PRIVY COUNCIL. 



I 



Again it is claimed that the right in question is given to the Pro- 
vinces through the transfer by tlie Act of the subject-matter termed 
"royalties." The objections last urged will apjily with equal force 
to that subject. The term "royalties" is of very general import 
and very comprehensive ; but it cannot be contended in this case 
that it includes the transfer of all that might come under that 
designation. "Royalties" as to mines is well understood in Eng- 
land to be the sums paid to the Sovereign for the right to Avork the 
royal mines of gold and silver ; and to the owner of private lands, 
for the right to work mines of the inferior metals, coal, etc. In 
Nova Scotia and New Brunswick, if not in the other Provinces, 
mines and minerals were at the time of the union being worked ; 
and, in Nova Scotia, a revenue therefrom was derived by the 
government and which, in the Acts of that Province, were called 
" royalties." That the income thus derived should be continued to 
that Province, it was necessary that provision therefor should be 
made ; and the use of the term was apparently 'intended for that 
purpose, and, at the same time, to give to the other Provinces the 
continuance of the same right, where such was previously enjoyed. 
The provision of the Act had therefore sufficient in the fact I have 
stated to furnish a subject-matter to which it could be referable, and 
upon which it could operate without giving it any additional or 
more extended application. The object was to secure to the Pro- 
vinces something at once available for revenue to be apjiropriated 
[6G7] by them in their Legislatures, and by their several govern- 
ments, for public purposes. It does not, however, follow that the 
words used in the provision should be adj udged to include the prero- 
gative right of the Sovereign in respect of any title she might obtain 
by the accident of a person dying intestate without heirs. Such an 
assumption as the latter is quite unnecessary to give operation to 
the provision ; and for the many reasons I have given, I think it 
does not include what is claimed ; nor can I arrive at the conclusion 
that such was intended. These views are in accordance in many 
respects with those I expressed in the case of Lenoir v. Ritchie. (1) 
I may add, that in that case they were not alone my views, but those 
of all my learned brethren who heard and decided it ; and I have 
heard nothing since tending to change or weaken them. After 
giving my views, as I have done, in reference to the right in ques- 
tion, I need hardly say that I consider the Act of the Province of 
Ontario in relation thereto ultra vires. I must, therefore, in accord- 

(1) 3 Can. S. C. R. 575 ; ante, vol. 1, p. 488. 






PRIVY COUNCIL. 



61 



ance with those views, decide that the resjiondent has not established 1883 

the positi m upon which liis right to recover in the suit is based ; 
that the judgment appealed from shoukl be reversed, and that our 
judgment should be for the appellant, with costs. 



Tascuebeau, J. : — 

Thougli I have not failed to give the able argumentation of the 
learned counsel heard before us on the part of the respondent in 
this cause the consideration it deserved, I have been unable to alter 
my views on the question submitted as I expressed them in the 
Fraser Case (I) where the same ([uestion was before me in the 
Superior Court of Kamouraska, and I am si ill of opinion that under 
[6f)8] the B. N, A. Act the right to escheats propter defectum san- 
guinis belongs exclusively to the federal power. As this last case is 
fully reported, I have not written down at full length the reasons 
upon which I have come to a conclusion in the present case. This, 
however, would, under the circumstances, have been useless, I 
concur entirely with what my brother Gwynne says on the con- 
struction to be given to the word " royalties," and to the word 
''lands" in sect. 109 of the B. N. A. Act, as well as with what he 
says on the doctrine of reversion relied upon by the respondent. 
I may remark that this doctrine of reversion, end the reasons given 
in the present case by the Ontario Court of Appeal applicable to 
real estate, do not support the Quebec Court of Appeal in the 
Fraser case, (1) where the question as submitted related to personal 
as well as real estate. To say, as has been said, that as escheats 
fall within the words " property and civil rights in the Province," 
they belong to the local power, is a petitio jirincipii. It is taking 
for granted that they do not belong to the Crown, to the federal 
power ; for, if they belong to the federal, they, of course, do not fall 
under the words " property and civil rights in the Province," and 
they cannot in any shape whatsoever be legislated upon by the local 
power. Sect. 117 of the B. N. A, Act, relied upon by some of the 
Judges in the Quebec Court of Appeal, has nothing to do wit,, the 
(juestion, and was not relied upon by the respondent before this 
Court. As to the word " royalties," to be found in sect. 109 of the 
B. N. A. Act, which word, according to some of the Judges in the 
Quebec Court of Appeal, in the Fraser case (2), transfers and reserves 



Attouney- 
Gknehal 

V. 
M.EHCER. 

Sup. C, 
Canada. 

Henry, J 



(1) 1 Quebec Law Rep. 177, post. 

(2) 2 Quebec Law Rep. 236 ; post, sub-nom. Attorney-General of Quebec v. 

Attorney-General of the Dominion, 



A 



Ik 






i i 



I II 



62 



PRIVY COUNCIL. 



nii 



1883 

ATTOKNKt- 

Genkral 

V. 

Mekceu. 

Sup. C, 
Canada. 

Taschereau, J. 



: ;!( 



escheats to the Provincial Goveniments, the respondent has, rightly 
in my opinion, been unwilling to base hia case upon it in his ivrgu- 
[6G9] ment before us. To my mind sect. 102 of the B. N. A. Act 
is conclusive. Tlie Legislatures of Canada, Nova Scotia and New 
Brunswick, before and at the Union, had power of appropriation 
over the revenues arising from escheats. Such revenues have not 
by the B. N. A. Act been reserved to the Provincial Legislatures. 
Neither can these revenues bo said to be raised by the Provincial 
Legislatures, in accordance with the special powers conferred upon 
tliem by the said B. N. A, Act. Then, they form part of the con- 
solidated revenue fund of the Dominion, according to this sect. 102. 
This is so for real as well as for personal property, as I read the 
Act. The argument of the respondent, based upon the doctrine of 
reversion, seems to mo defective in that it leaves the personal pro- 
perty of a person deceased intestate without heirs to the Federal 
Government, whilst it gives his real property to the Local Govern- 
ment. 

Any argument Avliich leaves Mercer's personal estate, which is 
very large, to the Federal Government, whilst it gives his real es- 
tate to the Local Government must, as I view it, be wrong, and 
contrary to a sound interpretation of the B. N. A. Act. The imperial 
authority cannot have intended such a division of the revenues from 
escheats. I may also remark that in the Province of Quebec the 
laws relating to escheats under art. 637 of the Civil Code are not 
derived from the feudal system, and are anterior to the feudal ages, 
so that this d()Ctrine of reversion could not apply there. It seems to 
me that anj' argument which under the B. N. A. Act does not and 
cannot apply equally to all the Provinces, must be contrary to the 
spirit and intent of the B. N. A. Act. This doctrine of reversion 
seems to me also defective in that it cannot apply to lands which 
did not belong to the Provinces at the time of the union. Lands 
which did not form part of the public domain at the union were not 
[670] given to the Provinces by sect. 109 of the Act. Lands of 
persons dying intestate without heirs in any one of the Provinces 
before confederation did not revest in the Province, but escheated 
to rjie Sovereign, and belonged to him. He alone had the title to 
tliem. The Provinces had been given by the Sovereign, and pos- 
ses- od at the union, power of appropriation over the revenues 
arising from this right of escheat (the revenues only, not the prero" 
gative right itself, which always remained and remains in the person 
of the Sovereign), and these revenues by sect 102 of the Act have 



PRIVY COUNCIL. 



68 



1883 

Attouney- 
Gknkbal 

V. 

Mkkoer. 

Sup. C, 
Canada. 



been given to the Dominion Govornmont. All duties and revenues 
over which the Provinces had, before confederation, power of ap- 
propriation are by said sect. 102 given to the Dominion Govern- 
ment, save and except only such portions of said duties and revenues 
which are by the Act reserved to the Provinces. Sect. 12(j distinctly 
enacts that the Provinces shall have for the future such jjortions 

only of said duties and revenues which are by the Act reserved to _ , _ 

•' -nv • • Tascherjau, J. 
tlicm. This is clear. For the Dominion, all duties and revenues, 

except those expressly reserved to the Provinces. For the Pro- 
vinces, none of said duties and revenues but such portions thereof 
as are expressly reserved to them. Tlie Provinces have consctiuently 
to establish that the Act reserved to them the revenues from escheats. 
Tlie onus probandi is on them. I fail to see that in any part of the 
Act these revenues have been so reserved to them. 

As to the argument, that as sect. 102 enacts that the duties and 
revenues therein mentioned shall form part of the consolidated 
revenue fund of the Dominion, it would be impossible for the Crown 
to relinquish its rights to revenues from escheats in favour of illegi- 
timate children of the deceased or otherwise, it may be remarked 
that this argument, if good, would ajjply equally to the statute 
[G71] (Con. Stat. C. , c. 10. s. 5), (1) in which it was also enacted 
tliiit the duties and revenues, including escheats, would form part 
of the consolidated revenue of the Province of Canada as CDUstituted 
before confederation. Yet, under the said Act it has never been 
doubted that the Crown could relinquish its rights to escheats when 
it wished so to do. 

The question submitted to us by one of the learned counsel for 
the respondent as to whether the Queen forms part of the Local 
Legislatures seems to me to have no practical bearing on this case. 
That, when anything which, according to the principles of the 



'ii 



.'*!: 



IP- 

II 






(1) Con. Stat. C, c. 10, s. 5 :—" Dur- 
ing the time for which the sums 
mentioned in the said schedules are 
severally payable, the same shall be 
accepted and taken by Her Majesty 
by way of Civil List instead of all 
territorial and other revenues at the 
disposal of the Crown arising in this 
Province ; and three-fifths of the net 
produce of the said territorial and 
other revenues at the disposal of the 
Crown within this Province, before 
the day last aforesaid, shall be paid 



over to the account of the said Con- 
solidated Revenue Fund. 

(2) "And also during the life of Her 
Majesty, and for five years after the 
demise of the Crown, the remaining 
two-fifths of the net produce of the 
said territorial and other revenues 
at the disposal of the Crown within 
this Province, before the day last 
aforesaid, shall also be paid over in 
like manner to the account of the 
said Consolidated Revenue Fund," 



54 



TRIVY COUNCIL. 



1883 

Attounkt- 
Genkral 

V. 

Mkkokr. 

Sui). C, 
Canada. 

Taschereau, J, 



British Constitution, must be done in Her Majesty's name has to be 
done by the Lieutenant-Govei-nors of the Provinces, under the B. 
N. A. Act, they are authorized to do it in Her Majesty's name, and 
are deemed then to act for Her Majesty, has not, that I remember, 
been denied by the appellant. But they are not Her Majesty's 
direct representatives*, as the Governor-Oeneral is. They have 
never been considered a8 such by the Imperial authorities. 

" Tlie Lieutenant-Governors of the Provinces of the Dominion, 
however important locally their functions may be, are a part of the 
colonial administrative staff, and are more immediately responsible 
to the Governor-General in Council. They dc not hold commissions 
from the Crown, and neither in power nor privilege resemble those 
Governors, or even Lieutenant-Governors of colonies, to whom, 
after special consideration of their personal fitness, the Queen, under 
the great seal and her own hand and signet, delegates portions ot her 
prerogatives and issues her own instructions," says the Earl of Car- 
narvon in a despatch to Lord Duflferin, dated January 7th, 1875. (1) 

That the Lieutenant-Governors are considered by the Imperial 
[672] authorities as officers of the Dominion Government seems also 
clear by the proceedings in the Letellier affair ; and the despatch of 
Sir Michael Hicks-Beach to the Marquis of Lome on the subject, 
dated July 3rd, 1879. (2) 

Tlie following despatch of the Duke of Buckingham and Chandos 
to Lord Monck; is written in the same view of the Lieutenant- 
Governor's position : 

"Downing Street, 19th October, 1868. 

" My Lord, — 1 have under my consideration your Lordship's 
despatch, No. 170, of the 9th September, submitting the question 
whether the Lieutenant-Governors of the Provinces within the 
Dominion of Canada are entitled to salutes from H. M. ships and 
fortifications within their respective Provinces. 

" I have the honour to acquaint you that under the circumstances 

of the case, the Lieutenant-Governors of the Provinces holding their 

commissions from the Governor-General will not be entitled to 

salutes. 

"I have the honour to be, 

"etc., etc., etc., 

"(Signed) Buckingham and Chandos. 

" The Viscount Monck. " 



(1) Dominion Sesaional Papers, 1875, Vol. 8, No. 7, Sessional Paper 11, p. 38. 

(2) Accounts and Papers, Imp. H. C, Vol. 51, p. 127, Session 1878, 1879. 



PRIVY COUNCIL. 



55 



Attounkt- 
Gknkhal 

I'. 
Mekoeii. 

Sup. C, 
Canada. 



Another despatch from the Secretary of Statu for the Colonies, 1883 

dated 7th November, 1872, though it recognises the Lieutenant- 
Governors should be deemed to be acting directly on behalf of Her 
Majesty on certain occasions, treats them on ordinary occasions, as 
rt'iiresenting the Dominion Government. 

, . " and with reference to the (juestion asked by Sir Hast- 
ings Doyle, and submitted by Lord Li^^gar for ray decision, namely, Taschereau J. 
' whether the Lieutenant-Governors iiro supposed to be acting on 
behalf of the Queen,' I have to observe that, while from the nature 
of their appointment they represent on ordinary occa'iona the 
Dominion Government, there are, nevertheless, occasions (fv :h as 
tlie opening or closing of a Session of the Provincial Legislature, 
the celebration of Her Majesty's birthday, the holding of a levee, 
etc., etc.) on which they shoidd be deemed to be acting directly on 
behalf of Her Majesty, and the first part of the National Anthem 
should be played in their presence, • 

"(Signed,) Kimbekley." 



[673] A reference to the order of precedence established for 
Canada by Her Majesty phews that the Lieutenant-Governors do 
not take rank and precedence immediately after the Governor- 
General, but only after the general coniTnanding Her Majesty's 
troops, and after the admiral connnunding Her Majesty's naval 
forces on the British iTorth America station, 

I do not cite these documents as conclusive evidence for a court 
of justice, but as worthy of consideration, and to shew that the 
Imperial authorities and Her Majesty herself consider the Lieu- 
tenant-Governors as not generally representing the Sovereign. 

However, as I have already stated, though the question has been 
raised and argued at some length before us, I do not think it can, 
in any manner, affect this case as I view it. As I have said, I fail 
to see that the B. N. A. Act reserved or gave to the Provinces the 
revenues arising from escheats. They consequently must belong to 
the federal power, and upon this ground I am of opinion to allow 
this appeal with costs, 

I am glad to understand that it was agreed between the parties 
that whatever should be the judgment of this Court on this ques- 
tion, the case would be carried to the Privy Council. Though these 
revenues from escheats must amount in fact to a trifle in each of the 
Provinces, I think it but right for obvious reasons that the final and 



^M 



56 



PinVY COUNCIL. 



1883 

Attokney- 
Gexhral 

V. 

Merceu. 

Sup. C, 
Canada. 

Taschereau, J, 



authoritative determination of controversies on the construction of 
the B. N. A. Act, which h an Imperial statute, should emanate from 
an imperial judicial authority. 

GWYNNE, J. : — 

This case was argued before us as one raising a question of the 
respective rights of tlie Dominion and Provincial authorities, and 
as sucli we have had the advantage [074] of hearing a learned counsel 
who appeared before us in the interest of the Province of Quebec, 
as well as two learngd counsel who aj>peared in the interest of the 
Province of Ontario on the one sitle, and, upon the other side, learned 
counsel who appeared before us in the interest of tlie Dominion. 

Tlie particular questio7i is, whether lands in the Province of 
Ontario escheating to the Crown propter defectum sanguinis come 
under the management, control and enjoyment of the Dt)minion or 
of the Provincial authorities I This question, however, involves the 
considcratit)n of all i)ropeity, both I'reehold and [tersonal, in the 
several Provinces of the Dominion which escheats to the Crown, 
and whether suclx escheat accrues propter defectum banguinis or 
propter delictum tenentis, and the conclusion in both cases must be 
the same. 

Tlie learned counsel who ajipearod before us in the interest of the 
Province of Quebec addressed to us an argument replete with ability 
and research for the purpose of establisliing a position which he 
took, namely, that the title which the Crown has to projjerty by es- 
cheat is not derived from the feudal tenure, but from a mucli more 
ancient law, namely, the old Roman law ; but from whatever source 
derived nuitters not, for, whatever may be its origin, the learned 
counsel admitted, as indeed he could not do otherwise, that whether 
escheat in lantls be or be not a species of reversion, whether the 
iitle accru(?s as a sort of cadiicary succession, the Sovereign taking 
as ultimus lueres, whether it is of the nature of a title by purchase, 
or by descent, or partakes of l)oth ; whether it accrues propter de- 
fectum sanguinis or jnopter delictum tenentis ; whether, in short, 
the escheated ])ro2jerty accrues as an incident to tenure or in virtue 
of tlie prerogative royal, and wheth'^' vt be real or personal property 
[675] whicli escheats, all pro^ arty escheating to the Sovereign does 
so jure coronae. The question with which we have to deal is one 
simply of the (construction of the B. N. A. Act, name' what dis- 
position has that Act (which is the sole -charter by which the rights 
claimed by the Dominion and the Pro\ iices respectively can be 



i 



PRIVY council: 



57 



determined) made of property escheating to the Crown ? and has it 
made any distinction between property escheatinj^ propter defectum 
sanguinis and that which escheats propter delictum tenentis ? In 
construing this Act, however, it will be convenient to consider in 
what manner, and iinder what designation or form of expression, 
property of the description in question had been dealt with in prior 
Acts of Parliament, and v.- hat was the precise condition in which 
that particular species of pro2)erty was regarded to be and was, at 
the tune of the passing of the B. N. A. Act. By so doing m u shall 
obtain light to assist us in construing the latter Act. 

In 1st Anne, c. 1, s. 5, jiroperty of this description is epoken of 
a3 lands, tenements and liereditaments which may hereafter escheat 
to Ilcr Majesty, her heirs and successors ; and to the end that the 
land revenues of the Crown might be i)resorveil, improved and in- 
creased for the best advantage thereof, it was enacted that no grant 
sliould be made of any manors, lands, tenements, tithes, woods or 
other hereditaments within the Kingdom of England, Dominion of 
Wales or Town of Berwick-on-Tweed, then belonging or thereafter 
Id belong to Her IMajesty, her heirs or successors, whether tho same 
should be in right of the Crown of England, or as part of the Prin- 
cipality of Wales, or of the Duchy or County Palatine of Lancaster, 
(ir otherwise howsoever, unless for 31 years or tliree lives, etc., 
etc., etc. 

[C7G] Sect. () made special provision as to buildings which, as they 
nught require rei)aration, were allowed to be granted for 50 years 
or three lives. 

Sect. 7 made all other grants which should be made contrary to 
the provisions of the Act to be void without any incjuisition or scire 
facias. Provided always [s. 8] that the Act or anything therein con- 
t.iined should not extend to disable Her Majesty, her hei';; or suc- 
cessors, to make any grant or restitution of any estate ov estates 
thereafter to be forfeited for any treason or felony whatsoever. 

The 39 & 40 Geo. 3, c. 88, was an Act passed to remove doubts 
whether real estate purchased by His Majesty out of his privy purse 
was subject to the provisions of the above statute of 1st Anne, and 
it declared that such lauds so purchased, or any other lands which 
might accrue to Hi.s Majesty, his heirs or successors, by gift, or de- 
vise, or by descent, or otherwise, from any of his ancestors, or any 
other person not being a King or Queen of Great Britain, were not 
aifected by the above Act, and it provided for the free disposition of 
all such lands by Hia Majesty, his heirs and successors. 



1883 

Attornky- 
Gkneral 

V. 

Mercer. 

Sup. C, 
Canada, 

G Wynne, J. 



f 






58 



PRIVY COUNCIL. 



1883 

^^-^ 

Attounev- 
Gkn'ekal 

V. 

Merceh. 

Sui). C, 
Canada. 

Gwynne, J, 



By the 12th sect, of that Act it was enacted as follows : 
' ' And whereas divers lands, tenements and hereditaments have 
become and may hereafter become vested in His Majesty, his heirs 
and successors, by escheat or otherwise, in right of tlie Crown, 
which in the hands of any of His Majesty's subjects would be 
chargeable with certain trusts, or ap2:)licable to certain purposes, and 
His Majesty, his heirs or successors may be desirous that the same 
sliould be applied accordingly, notwithstandirg any right which he 
or thej^ may have to hold the same discharged from such trusts, or 
witliout applying the same to such purposes, but by reason of the 
provisions contained in the said Acts of the first year of her said 
late Majesty Queen Anne and the thirty-fourth year of His Majestj''s 
reign, doubts may be raised whether His Majesty, his heirs or suc- 
cessors, can direct such application thereof ; and whereas divers 
lands, tenements and hereditaments, as well freehold as copyhold, 
have escheated and may escheat to His Majesty, Ids heirs or suc- 
cessors, for want of heirs of the persons last seised thereof or entitled 
[077] thereto, or by reason of st)me forfeiture or otherwise, althr^ugh 
not forfeited for treason or felony, and it is expedient to enable His 
Majesty to direct the execution of any such trusts or purposes as 
aforesaid and to make any grants of any such nianorf, lands, tene- 
ments or hereditaments as aforesaid notwithstanding the provisions 
contained in tlie said recited Acts : Be it enacted that it shall be 
lawful for His IMajesty, his heirs and successors, by warrant under 
his or their sign manual to direct the execution of any trusts or 
purjioses to which any manors, messuages, lands, tenements or 
hereditaments which have escheated or shall escheat to His Majesty, 
his heirs or successors shall have been liable at the time the same 
so escheated respectively, or would liavo been liable in the hands of 
any of Ilis Majesty's subjects, and to make any grants of such 
manors, lands, tenements and hereditaments respectively to any 
trustee or trustees or otherwise for the execution of such trusts, and 
to make any grants of any lands, tenements or hereditaments which 
have escheated or shall escheat as aforesaid to any person or persons, 
either for the purpose of restoring the same to any of the family of 
the person or persons whose estates the same had been, or of re- 
warding any persons or person making discovery of any such es- 
cheat, as to His Majesty, his heirs or successors respectively shall 
Beem tit ; anything in the said Acta or any of them to the contrary 
notwithstanding." 

By 47 Geo. 3, c. 24, which was passed to explain and amend 



PRIVY COUNCIL. 



59 



39 & 40 Geo. 3, c. 88, and to remove doubts which had been 
raised whether the 12th section of that Act applietl to the Duchy of 
Lancaster, tlie title of the Kings of Enghaml to which is separate 
from the Crown of Enghand, (1) and grants of iuiids m which were, 
liy a statute of Henry 5, valid only when executed under the seal 
of the Duchy (2) it was enacted "that in all cases lu which His 
Alajesty, his heirs or successors, hath or shall in riglit of his Crown 
or of his Duchy of Lancaster become entitled to any freeli^)ld or 
copyhold manors, messuages, lands, tenements or iKreditaments, 
either by escheat for want of heirs, or by reason of any forfeiture, or 
by reason tliat the same had been purchased by or for the use of or 
[()78] in trust for any alien or aliens it shall be lawful for His 
Majesty, his hei .s and successors, by warrant under his or their sign 
manual, or under the seal of the Duchy or County Palatine of Lfin- 
caster according to the title to such manors, messuages, lands," etc. , 
etc., to mpke grants thereof (as in 12th sect, of 39 & 40 Geo. 3, 
c. 88V .'Uiyi;;ing in 1st Anne and 34 Geo. 3, c, 75, or any other 
Act to tlie \. ,ntrary n(;twithstanding. 

By 59 Geo. 3, c. 94, which was passed to explain and amend 
3!) & 40 Geo, 3, c. 88, and 47 Geo. 3, c. 24, and to remove 
doubts which had arisen in certain cases of grants by His Majesty 
under the said recited Acts, it was enacted "that in all cases in which 
His Majesty hath, or shall in right of his Crown, or of his Duchy of 
Lancaster, become entitled to any freehold or copyhold manors, . . 
. . . either by escheat for want of heirs, or by reas(JU of any f(.ir- 
leiture, or by reason that the .same have been or shall be purchased 
by or for the use of or in trust for any alien or aliens it shall he 
lawful I'or His Majesty, his heirs and successors" (as in former Acts) 
to make grants of such manors, etc., etc , or of any rents and profits 
then due and in arrear to His Alajesty in resj'cct thereof respectively, 
to any trustee, for the execution of any trufits or for the purpose of 
restoring the same to any of the family of the person whose estate 
the same had been, or for carrying into effect any intended grant, or 
for rewarding discoverers, or to the families of aliens or other persons 
unconditionally, or in consideration of money, -r to a trustee to 
sell, and that the rents and purchase moneys to arise by any sale 
should be applied in payment of any costs, charges and expenses 
incident to any commission for finding the title of His Majesty, and 
to the making of any such grant, and for carrying the same and the 



1883 

Attouney- 
Gknfual 

r. 
Mkrceb. 

Slip. C, 
Ciiiiada. 

Gwyime, J. 






m ■ 



(1) See Duke v. Walford, 5 Moore, V. C. 434. 

(2) See 17 Viner'« Abr. p. 73, E. b. 2. 



60 



PUIVY COUNCIL. 



1883 

Attorney - 
GKNEKAL 

V. 

Meucer. 

Su]). 0., 
Canada. 

Gwynne, J. 



trusts thereof into execution, or in rewarding any person, or the 
family of any per.sun making discoveiy of any such escheat, [679] 
forfeiture, or purchase by an alien or of His Majesty's ri<5ht and 
title thereto, or in discharging the whole or any part of the debts 
due from an alien or any person whose estate or property, any 8uch 
manors, messuago.s, etc., etc., have been ; or for the use or benefit, 
in wliole or in part, of any .inch alien or of his family, or of any 
person ado])ted by such alien or considered as part of his family, or 
of any per.scm whose estate or property any such manors, etc., etc., 
have been, or his family ; or of any person adopted or considered })y 
such person as part of his family, "or for all or any of the pui'poaes 
aforesaid as to His Majesty, his heirs and successors, shall seem 
fit ; and all grants heretofore made by His Maj jsty which would, 
under the prijvisicjns of this Act, bo good are hereby declared to l)e 
as good, valid and eiiectaal to all intents and purposes as if the same 
had been made under the powers, provisions, and authorities of this 
Act,'' notwithstanding anything to the contrary in any previous Act. 

By the 3rd sect, it was enactt d,th<it in every case where any surplus 
should remain of any moneys which should arise from any such sale 
or s des, or which should be pai I under the authority of the Act by 
any person, "after satisfying all such purposes as shall have been 
ordered and directed by His Majesty, his heirs or successors, under 
the provisions of this Act, shall bo paid to tlie Commiss'oners of 
the land revenue for the time being, to be applied by tlieni in the 
same way and manner as the money ari-ing frjm the sale of any 
manors, messuages, lands, tenements, or hereditaments of or belong, 
ing to His Majesty, his heirs or successors, is by the several Acts now 
in force f' r the management and improvement of the land revenue 
of the Crown or any of tliem, directed to be applied and disposed of. " 

By the 14th sect, of Ist Geo. 4, c. 1, it was enacted, " that an 
annual acct)unt of all moneys which shall or may hereafter arise and 
be received for and in respect of any droits of Admiralty or droits 
[GBO] of the Cnnvn, .... and from all surplus revenues of 
Gibraltar, or any other possessions of His Majesty, out of the 
Uniteil Kingdom, and from all other casual revenue or revenues, 
whiither arising in or from any foreign possessions, or in the United 
Kingdom, and of the application and dispositions of all such moneys 
or revenues, shall be laid before Parliament on or before the 24th 
day of March in each year, if Parliament shall be then sitting ; or, 
if Parliament shall not be tlien sitting, then within 30 days after 
the then next meeting of Parliament." 



PllIVY COUNCIL. 



61 



been 
under 
[lers of 
in the 
f any 
jlong- 
:ts now 
evenue 
id of." 
that an 
ise and 
droits 
iivies of 
of the 
renues, 
United 
noneys 
le 24th 

ig ; or, 
rs after 



T3y 6 Geo. 4, c. 17, the provisions of 59 Geo. 3, c. 94, were 
extended to leasehold lauds, etc., etc.. etc. 

In 1829, 10 Geo. 4, c. 50, was passed. This was an Aot to con- 
solidate and amend the laws relating to the management of the land 
revenue of the Crown within England and Ireland, aiul by the 12(jth 
sect, of that Act it w.as enacted that nothing in the Act should 
extend, or be deemed or construed to extend, to repeal, interfere 
with or in any manner affect, any of the powers and provisions of 39 
& 40 Geo. 3, c. 88, or of 47 Geo. 3, c. 24, or of 59 Goo. 3, c. 94, or 
of 6 Geo. 4, c. 17. 

And by the 128th sect, it was enacted, " that nothing in this Act 
contained shall extend, or be construed to extend, in any wise to 
impair or affect any rights, or powers of control, managjment or 
direction, which have been or may be exercised by authority of the 
Crown, or other lawful warrant relative to any leases, grants, or 
assurances of any of the small branches of His Majesty's hereditaiy 
revenue, or to any suits or proceedings for recovering the same, or to 
compositions made or to be made on account of any of the said small 
branches, or to fines t?iken or to be taken, or to rents, boons and ser- 
vices reserved or to be reserved upon such grants, leases and assvi- 
rances, or to the mitigation or remission of the same, or to any ether 
lawful act, matter or thing which has been or may be done touching 
[681] the said branches, but that the said rights and powers shall 
continue to be used, exercised and enjoyed in as full, free, ample and 
effectual manner to all intents and purposes as if this Act had not 
been made, and as the same had been or might have been enjoyed 
by His Majesty up to the time of passing of this Act. . . ." 

Froni this last section it appears to be clear that lands which 
should escheat to the Crown, whether propter defectum sanguinis or 
propter delictum tenentis, or which should become forfeited as pur- 
chased to the use of or in trusi for an alien, were not, and were not 
n-garded as being part of what were known as " the small branches 
of His Majesty's hereditary revenue :" and that in parliamentary, 
that is to say in statutory phraseology, this latter term did not com- 
prehend revenue derived from such escheated or forfeited lands. 
The law affecting lands accruing to the Crown by escheat and for- 
feiture remained as appearing in the above recited Acts until the 
accession of His Majesty King Wni. 4 to the throne in 1830. It 
will be observed that the above Acts do not profess to affect any 
personal chattel property escheating to the Crown which continued 
to be at the absolute disposal of the Sovereign. It will be observed 



Attouney- 
Genehal 

V. 

Meucer. 

Sup. C, 
Canada. 

G Wynne, J. 



1?";!] 
ft'''' 

I: 



ft 
: r,l ■ 



m 



62 



PRIVY COUNCIL. 



1883 

Attouxky- 
Gknkual 

r. 
Meuceh. 

Sup. C, 
Canada. 

Gwynne, J. 



also, that the above recited Acts of 39 it 40 Geo. 3, 47 Geo. 3, 59 Geo, 
3, and G Geo. 4, were not passed for the purpose of vesting in tlie 
Crown rights in respect of lands accruing by escheat or forfeiture 
which the Crown never had before had, but for the purpose of re- 
moving the resti'aint which the provisions of 1st Anne had imposed, 
or might be snpp(jsed to have imposed, upon the power of the CroAvn 
over such lands which, but for tliat statute, would have beer abso- 
lute. The eifect of the recited Acts was to .;ause to be paid over to 
the commissioners of His Majesty's land revenues the surplus only 
of the revenue which might be derived or arise from the sale of any 
[fi82] such escheated or forfeited lands, after the full and free exer- 
cise by the Crown of its prerogative right of disposing at pleasure 
and ex si)eciali gratia of the whole of such lands, or of the proceeds 
of the sale thereof, to all or any of the purposes mentioned in the 
recited Acts ; they were, in fact, Acts passed for the purpose of 
maintaining the prerogative right of the Crown of graciously 
restoring such lands to persons who were, or who were considered 
as being of, or adcjpted into, tlie family of the person whose estate 
the property had been ; that gracious exercise of the Sovereign's 
prerogative riglit those statutes maintained and preserved. 

Whether the language of 39 & 4.0 Geo. 3, and of the subsequent 
Acts in amendment thereof, extending as it did to " all oases in 
which His Majesty, his heirs or successors, hath or shall in right of 
his Crown become entitled by escheat, etc.," was sufhctent to 
include lands in the colonies escheating to the Sovereign for the 
time being in right of the Crown, is of no importance at the present 
day, nor is it necessary for the purpose of this case to inquire and 
determine, for from what I have already said, it follows, that if those 
Acts did not apply to lands escheating to the Crown in the colonies 
the prerogative right of the Crown over such lands to dispose of 
them at pleasure, and consequently to tlie gracious purposes indi- 
cated in the above recited Acts, remaijied absolute and unaflFected by 
any Act of Parliament at the time of the accession of His Majesty 
King Wm. 4 to the throne ; for the statute 1st Anne was confined 
expressly in terms to England and Wales and the Town of Berwick- 
on-Tweed, and no similar Act affecting the property belonging or 
accruing in the colonies to the Sovereign jure corona) had been 
passed. 

I have named above the accession of his late Majesty King Wm. 
4 to the throne as being the period when first any revenue derived 
[083]^ from the casual source of property, whether real or personal, 



PRIVY COUNCIL. 



63 



cscheatinp; to the Crown eitlier projiter defectum sanr,'uiiiis or propter 
delictum teucntis, was surrendered by tlie Crown and was incor- 
porated into and made part of the consolidated fund of the United 
Kingdom. 

Ey 1st Wm. 4, c. 25, r :v reciting among other things that His 
Majesty had been graciously pleased to signify to His Majesty's 
faithful Commons in Parliament assembled, that His Majesty placed 
without reserve at their disposal His Majesty's interest in the here- 
ditary revenues of the Crown and in tliose funds which may be 
derived from any droits of the Crown or Admiralty— frc^m the West 
India duties, or from any casual revenues either in His Majesty's 
foreign possessions or in the United Kingdom, it was enacted "that 
the produce of all tlie said hereditary rates, duties, payments and 

revenues iu England and Ii'cland respectively, and 

also the small branches of the hereditary revenue, and the produce 
of the hereditary casual revenues arising from any droits of Admi- 
ralty or droits of the Crown, . . . and from all surplus reve- 
nues of Gibraltar, or any other possession of His Majesty out of the 
United Kingdom, and from all other .aiiial revenues arising either 
in the foreign possessions of His Majesty or iu the United Kingdom, 
which have accrued since the decease of his said late Majesty, and 
whicli shall not have been applied and. distributed in the payment 
of any charge thereupon respectively, or which shall accrue during 
the life of his present Majesty . . . shall be carried to and 
made part of the consolidated fund of the United Kingdom of Great 
Britain and Ireland ; and from and after the decease of his present 
Majesty, ... all the said hereditary revenues . . . shall 
be payable and paid to his heirs and successors" ; and by the 12th 
clause it was enacted, "that nothing in this Act contained :shall 
extend, or be construeil to extend, in any wise te impair, affect or 
[G84] prejudice any rights or powers of conti'ol, management or 
direction which have been or may be exercisevl by authority of the 
Crown, or other lawful warrant, relative to any leases, grants or assu- 
rances of any of the said small branches of His Majesty's hereditary 
revenues, or to any suits or proceedings for recovery of the same, 
. . . or to any other lawful act, matter or thing which has been, 
or may be, done touching the said branches, or to the granting of 
any droits of Admiralty or any droits ot the Crown, or any part or 
proportion of any such droits respectively, as a reward or remune- 
ration to any officer or officers, or other person or persons, seizing or 
taking the same, or giving any information relating thereto, or to the 



1883 

Attounky- 
Gknekal 

V. 

Meiicek. 

Sup. C, 
Canada. 

Gwynne, .J. 






■i . 



64 



PRIVY COUNCIL. 



1883 

Attorney- 
General 

V. 

Mercer. 

Sup. C, 
Canada. 

Gwynne, J. 



granting, disposing of, or leasing any freehold or copyhold property, 
or the produce, or any part of the produce, or amount, or value of, 
any freehold or copyhold to which His Mtajesty, or any of his royal 
predecessors, have, or hath, or shall becom-j entitled, either by 
escheat for want of heirs, or ^y reason of any forfeiture, . . . 
or to the granting or distributing of any personal property devolved 
to the Crown by reason of the want of next of kin or personal 
representative of any deceased person, but that the same risjihts 
and powers shall continue to be used, exercised and enjoyed in as 
full, free, ample and effectual a manner to all intents and purposes 
as if this Act had not been made, and as the same have been or 
might have been enjoyed by his said late Majesty George the Fourth 
at the time of his decease, subject nevertheless to ail such res- 
trictions and regulations as were in force by virtue of any Act 
or Acts of Porliament in relation thereto at the time of the decease 
of his said late Majesty, it being the true intent and meaning of 
this Act that the said rights and powers shall not in any degree 
be abridged, restrained, affected, or prejudiced in any manner 
whatsoever, but only that the moneys accruing to the Crown, after 
the full and free exercise and enjoyment of the said rights and 
powers, subject as aforesaid, shall, during His Majesty's life be 
[685] carried to and made part of the consolidated fund of the 
United Kingdom." 

Now it will be observed that from the passing of the above sta- 
tute of Anne until the passing of this Act of 1st Wm. 4, that branch 
of the revenues of the Crown which arose from escheated or for- 
feited lands is never spoken of in any Act of Parliament under any 
other designation or description than as the proceeds of lands 
" which may hereafter escheat," or of lands '• wherein His Majesty 
hath or hereafter shall become entitled in right of his Crown by 
escheat or forfeiture. " Never in any Act is such property spoken 
of or dealt with under the bald description of ' ' lands belonging to 
His Majesty." A distinction also was in statutory phraseology 
drawn between property known under the name of " the small 
branches of His Majesty's revenue " and lands accruing to His Ma- 
jesty by escheat or forfeiture. In 1st Wm. 4, c. 25, the revenues 
arising from all lands and personal property devolving upon the 
Sovereign in right of the Crown by escheat or forfeiture, as well as 
all revenues arising from the " small branches" of his Crown reve- 
nue, are dealt with under the name and designation " casual " 
revenues of the Crown, and henceforth under this term "casua 



PHIV^Y COUNCIL. 



65 



revunuea," tlio proceeds of all property, whether real or personal, 
devolving upon the Crown by escheat, is dealt with by Parliament. 

The language of this Act 1st Wni. 4, appears to be abundantly 
ample to comprehend under its operati'jn tlie territorial and casual 
revenues accruing to the Crown in the colonies, aud in tlie eonllict 
which arose between the Ccdonial and Iiuperial authorities, for the 
purposes of obtaining for the colonies control over those revenues, 
certain of the Imperial autliorities from time to time <[uestioned the 
[()8(!] competency of the Crown to assent to any bill passed by tlie 
colonial assemblies affecting to deal with those revenues. In April, 
1837, as appears by Mr. Forsyth's work intituled "Cases and Opi- 
nions on Constitutional Law," p. 150, the then law officers of the 
Crown in England, Sir John Campbell, afterwards Lord Campbell, 
and Sir R. M. Rolfe, afterwards Lonl Cranworth, in answer to a 
question submitted to theui by Lord Glenelg, then Colonial Mi- 
nister : " Whether it is in point of law competent to His Majesty, 
with the advice and consent of the Legislative Council and Assembly 
of New Brunswick, to render the tracts of wild land in that colony 
which belong to His Majesty jure coronso subject to the apjn-opria- 
tion of the Legislature of the Province for a fixed period or in per- 
petuity, in return for a civil list, to be settled on the Crown for a 
similar term, or in perpetuity, as may be thought best I" — gave it 
as their opinion that it was competent for His Majesty to make such 
appropriation of his hereditary revenues in the colony of New 
Brunswick. 

The colony of New Brunswick possessed a constitution, not 
created by Act of the Imperial Parliament, as that of Lower and 
Upper Canada was, but created from time to time by the Kings of 
England in the exercise of their royal prerogative, the legislative 
authority in which, as in the Imperial Parliament, consisted of the 
Sovereign, acting with the advice and consent of a Legislative 
Council and Assembly, the limits of jurisdiction of such legislature 
not being prescribed by any written charter. Accordingly, in p\u'- 
suance of this opinion and in the month of July, 1837, an Act 
framed upon the model of the Imperial Act, 1st Wm. 4, and pre- 
pared in England, was passed by the Legislature of New Brunswick, 
8 Wm. 4, c. 1, whereby after reciting that "his most gracious Ma- 
jesty had been pleased to signify to his faithful Commons of New 
[087j Brunswick, that His Majesty will surrender up to their con- 
trol and disposal the proceeds of all His Majesty's hereditary, ter- 
ritorial and casual revenues, and of all His Majesty's woods, mines 

5 



1883 

ArroHNET- 

Genkual 

v. 

MKIit'KK. 

Sup. C, 
Canada 

G Wynne, J. 




4 




66 



PlilVY COUNCIL. 



1883 

Attounkv- 
Gknichai. 

I. 
Mkiu'kk. 

Ku|). C, 
Canada. 

Gwyniio.J. 



ami royalties, now in hand, or which may hereafter during the con- 
tinuance of this Act be collected in this Province, on a sufficient 
sum boiuL' secured to His Majesty, liis heirs and successors, for tlie 
support of the Civil Government in this Province," — it was enacted 
"that the proceeds of all and every the said hereditary, territorial 
and casual revenues, and tlie proceeds of all sales and leases of 
Crown lands, woods, mines and royalties, which have been collected 
and are now iu hand, or which shall be collected hereafter, during 
the continuance of tlii.s Act, (except the moneys which shall be 
expended in the collection and protection thereof, as specially autho- 
rized and provided for by the 4th sect, of this Act,) shall imme- 
diately be payable and paid to the Provincial Treasurer, who is 
hereby authorized to receive the same for the use of this Prcn'ince ; 
and from and after tl.e expiration of this Act, the proceeds of all 
the said hereditary, territorial and casual revenues, and of the said 
lands, woods, niine^ and royalties, shall revert to and be payable 
and i)aid to his said Majesty, his heirs and successors." The Act 
then granted a civil list of £14,500 per annum, for ten years, from 
31st December, 183(i, when the Act shoidd expire. 

The 4th sect, above referred to {irovided for the payment of the 
expenses of management out of the gross revenues, and by the Gth 
sect, it was among other things enacted that nothing in the Act 
contained should extend or be construed to extend in any wise "to 
disable His Majesty, his heirs and successors, to nuike any grant or 
restitution of any estate or estates, or of the produce thereof, to 
which His Majesty hath or shall become entitled by escheat for 
want of heirs, or by reason of any forfeiture, or by reason of the 
same having been purchased by or for the use of any alien, or to 
[U88] make any grant or distribution of aiiy personal propei'ty 
devolved to the Crown by reason of the want of next of kin or per- 
sonal representatives of any deceased person, and that the said 
rights and powers shall continue to be used, exeicised and enjoyed 
in as full, free, ample and effectual manner to all intents and pur- 
poses as if this Act had not been made, and as the same have or 
might have been heretofore enjoyed by the Crown, subject never- 
theless to the restrictions and regulations hereinbefore made and 
provided ; it being the true intent and meaning of this Act that the 
said rights and powers shall not be in any degree abridged or res- 
trained, or affected in any manner whatsoever, but only that the 
moneys arising fnnn the full and free exercise and enjoyment of 
them, so subject as aforesaid, shall, during the continuance of this 



I'HIVY COUNCIL. 



07 



Act, bo carried to ami made part of the joint stock reveniius at 
the dia|)osal of the General Assembly of this Province." 

The provisions of this Act were ro-enacted and made perpetual 
by Revised Statutes of N. B., title 3, c. 5. 

The connection in whicli the words "Crown lands, woods, mines 
and royalties " are used in tliis Act plainly sliews that under tliese 
words is meant to be designated wliolly dillerent j)roj)erty from any 
accruing to the Crown by reason of escheat or forfeiture, and that 
the word "royalties" is intended to describe and cover merely 
mcmeys, or part of the produce of mines, arising from lease or other 
disposition of mines. Upon the accession of lier pn^sent Majesty 
tlie Act 1 it 2 Vict., c. 7, was passed, which is identical in its terms 
with 1st Wm. 4, c. 25. 

That the Imperial Parliament, at the time of the reunion of the 
Provinces of Lower and Upper Canada, was determined not to vest 
ill the Legislature of United Canada tlie same j)ower and control 
over the Crown revenues in the Province as the law officers of the 
Crown, liad, in April, 1837, i)ronounced to be vested in the Legis- 
[(i3!>] lature of New Brunswick, appears from the constitutional 
Act 3 & 4 Vict., c. 35. For the Imperial Parliament by that Act 
itself constituted a Consolidated Fund and a Civil List for the Pro- 
vince of United Canada, and made a special disposition of the reve- 
nues at the disposal of the Crown, and restrained the Crown from 
assenting to any bill passed by the Legislative Council and Assem- 
bly, which should in any minner relate to or affect Her Majesty's 
prerijgative toucliing the granting of waste lands of the Crown 
within the Province, until 30 days after the same should have been 
laid before both Houses of the Imperial Parliament, or in case 
either of the said Houses of Parliament should within the said 30 days 
address Her Majesty to withhold her assent from any such bill. 
The clauses providing for a Civil List, namely, the 52nd and 54th, 
enacted that out of the consolidated revenue fund there should be 
payable permanently to Her Majesty, her heirs and successors, 
^45,000 for defraying tlie salaries of the Governor, Lieut. -Governor, 
and of the Judges, and Attorney and Solicitor-General, and the 
expense of the administration of justice, and during the life of Her 
Majesty, and for five years after the demise of ller Majesty, a fur- 
ther sum of £30,000 for defraying the expenses of the civil govern- 
ment ; and that during the time for which the said several sums 
were payable the same should be accepted and taken by Her Ma- 
jesty, by way of Civil List, instead of all territorial and other reve- 



1883 
Attounkt- 

(iKNKKAI. 
('. 

Mekckr. 

Sup. C, 
Canada. 

(jwj'une, J. 



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68 



PRIVY COUNCIL. 



1883 

Attorney- 
General 

f. 
Mercer. 

Sup. C, 
Canada. 

Gwynne, J. 



nues now at the disposal of the Crown arising in either of the said 
Provinces of Upper Canada or Lower Canada, or in the Province of 
Canafla, and that three-fifths of the net produce of the said terri- 
torial and other revenues now at tlie disposal of the Crown within 
the Province of Canada should be paid over to the account of the 
said consolidated revenue fund, and also during the life of Her 
Majesty, and for five years after the demise of Her Majesty, the 
[690] leniaining two-fifths of the net produce of the said terri- 
torial and other revenues should also be paid over in like manner to 
the account of the same fund. 

The Legislative Assembly of the Province persisted still in 
I ndeavouring to procure the recognition of the principle for which 
they contended, namely, that the colonial Legislature should exer- 
cise the like control over the territorial and casual revenues of the 
Crown arising in the Province as was exercised by the Imperial Par- 
liament over the like revenues arising within the United Kingdom. 
Accordingly, in 1846, a bill passed the Legislative Assembly and 
the Legislative Council of the Province which, as coming within 
the provision of the Act of Union, was transmitted to England for 
tlie purpose of being laid, and was laid, upon the table of both 
Houses of the Imperial Parliament. 

By this bill, it wis recited, among other things, as follows : 
" Whereas your Majesty has l)een most graciously pleased to declare 
to your faithful (Janadian Commons, in Provincial Parliament assem- 
bled, your Majesty's gracious desire to owe to the spontaneous libe- 
rality of your Canadian people such grant, by way of Civil List, as 
Khali be suflicient to give stability and security to the great civil 
institutions of the Province, and to provide for the adequate remu- 
neration of able and efficient officers, in the executive, judicial and 
other departments of your Majesty's public provincial service, the 
granting of which Civil List constitutionally belongs only to your 
Majesty's faithful Canadian peojjle in their Provincial Parliament." 

The bill provided for the estiablishment of a consolidated revenue 
fund for the Province of Canaila, in tlie same terms as had been 
p-.ovided by the 50th sect, of 3 & 4 Vict., c. 35. It then charged 
ui)on tliat consolidated fund permanently a sum not exceeding 
£34,638 I5s. 4d. cy., in lieu of the £46,000 by the 52nd sect, of 
3 it 4 Vict, provided, and during the life of Her Majesty, and for 
five years after the demise of Her Majesty, a sum, not exceeding 
[601] £39,245 IGs. cy., in lieu of £30,000 by the 54th sect, pro- 
vided ; aitd after making provision for alteration in the salariea 



PllIVY COUNCIL. 



G9 



to be attached to certain offices, it enacted that : " During the time 
for which the said several sums mentioned in the said schedules are 
severally payable, the same shall be accepted and taken by Her 
Majesty, by way of Civil List instead of all territorial and other 
revenues now at the disposal of the Crown, arising in this Province ; 
and that three-fifths of the net produce of the said territoi'ial and 
other revenues, now at the disposal of the Crown, within this Pro- 
vince, shall be paid over to the account of the said consolidated 
revenue fund ; and also that during the life of Pier Majesty, and 
for five years after the demise of Her Majesty, the remaining two- 
fifths of the net produce of the said territorial and other revenues 
now at the disposal of the Crown within this Province, shall also be 
paid over in like manner to the account of the said consolidated 
revenue fund." 

By the Imperial Act 10 it 11 Viet., c. 71, Her Majesty was au- 
thorized, witii the assent of her I'rivy Council, to assent to the 
above bill, and it was enacted that if Her Majesty, with the advice 
of her Privy Council, should assent thereto, then the clauses num- 
bered respectively 50 to 57, both inclusive, of 3 & 4 Vict., c. 35, 
should be rei)ealed upon and from the day on which the said 
reserved bill (being first so assented to by Her Majesty in Council) 
should take eliect in the Province. The bill was subsecjuently 
assented to and became an Act, 9 Vict., c. 114, of the Provincial 
Legislature. 

Tiie object of the 1 rovincial authorities in procuring the passage 
of this bill, and the royal assent thereto, as an Act of the Provincial 
Legislature, was to obtain the recognition of the principle so long 
contended for, and which is set out in the above extract from the 
]ireamble, namely, that the Crown should owe the Provincial Civil 
List to the Provincial Commons, iind that in return therefor the 
Crown should surrender to tlie Prt)vincial Legislature the same con- 
trol and management of the territinial und casual revenues accruing 
to tlie Crown within the Province as was exercised and enjoyed by 
[(i92J tlie Imperial Parliament over the like revenues arising 
within the United Kingdom. To have greater control was never 
contended for. We can tliorefore, I tliink, alHrm with great con- 
fidence that by the passing of the bill into an Act the Load Legis- 
lature never contemplated obtaining, nor, by authorizing the Royal 
assent to be given to it, did the Imperial Parliament contemplate 
conferring on the Provincial Legislature, any greater control over, 
or interest in, the revenues arising from property devolving upon 



1883 

Attorney- 
General 

V. 

Mercer. 

Sup. C, 
Canada. 

Gwynne, J, 



70 



PRIVY COUNCIL. 



1883 

Attounev- 
Genkkal 

V. 
MnUCER. 

Sup. C, 
Canada. 

Gwyiine, J. 



HI I 



tho Crown by escheat or forfeiture, than was exerci.-*ecl and enjoyed 
in Enghmd by the Iinpcrial Parliament over the like revenues there, 
under the 12th sect, of Ist Win. 4, c. 25, and 1 «fc 2 Vict., c. 2, by 
which tho jurisdiction was limited to the 8uri)lu8 or " net pro- 
ceeds," as they are called in the Canadian Act, and in 3 & 4 Vict., 
c. 35, of those revenues, after the full and free exercise by Her 
Majesty of her royal prerogative of grace and bounty, as expressed 
in those sections ; and yet it is certainly true that no section similar 
to the 12th sect, of the above Imperial Acts is inserted in 3 & 4 
Vict., c. 35, or in the Canadian Act. This latter Act, however (if 
the question of Her Majesty's right to have exercised in Canada 
such her royal prerogative of grace and bounty after the passing of 
that Act at the time of the passing of the B. N. A. Act, should be 
material to the determination of the question now before us), will 
have to be read in tho light of three Imperial statutes subsequeiitly 
passed, viz., 15 & 16 Vict., c. 30, 17 & 18 Vict., c. 118, and 28 & 
29 Vict., c. 03. The same observation may be applied to the Aci. of 
the Legislature of Nova Scotia, passed in the year 1849, by which 
the territorial and casual revenues of the Crown aiising in that Pro- 
vince were surrendered to the Provincial Legislature. That Act, 
which appears to have been drafted by a draftsman of a peculiarly 
[693] and indeed of an excessively cautious cast of mind, after 
providing for the surrender of all moneys arising from the Crown 
lands, mines, minerals or royalties of Her Majesty within the Pro- 
vince, proceeds to enact, so as !o make assurance doubly sure, that 
" so soon as this Act shall come into operation, all the right and title 
of Her Jfajesty, whether in reversion or otherwise, of, in, to and out 
of all and singular the mines of gold, silver, coal, iron, ironstone, 
limestone, slatesfone, slaterock, tin, copper, lead and all other mines 
and minerals and ores within this Province, which by indenture of 
lease, bearing date on or about the 26th day of August, in the year 
of Our Lord, 182(5, were granted, demised and leised by or on the 
part of liis late Majesty King Geo. 4, to his late royal brother the 
Duke of York, for the term of CO years, at and under certain rents 
and renders therein contained, ns by reference to 'he said lease wil 
at large appear, and also all rents and arrears of rent and returns 
due or to become or grow due by virtue of the said lease, with all 
powers, rights and authorities, whether of entry for forfeitures, or 
breach of coiulition or otherwise in the said lease reserved or con- 
tained, in respect of the breach of any condition thereof, and also all 
the estate, right and title of Her Majesty, reversionary or otherwise 



PRIVY COUNCIL. 



71 



of, in and to all such coal mines in the Island of Cape Breton, and 
to all such reserved mines at Pictou which were aj^reed to be leased 
and demised by his said late Majesty for the yearly rent of £3,000 
sterling . . , and which said mines, under such agreement, 
are in possession of, and were or are now in operation and worked 
by or for a certain company called the General Mining Association, 
and likewise the said yearly rent of £3,000 sterling, and all other 
rents and reservations by the said agreement reserved or payable, 
. . . . and also all mines of gold, silver, iron, coal, ironstone, 
limestone, slatestone, slaterock, tin, copper, lead and all other mines, 
minerals and ores within this Province, including the Island of 
Cape Breton, of which the title is now in Hor Majesty, shall be, 
and the said several enumerated premises are hereby respectively 
assigned, transferred and surrendered to the disposal of the General 
Assembly of this Province .... to and for such public uses 
[604] and purposes as in and by any Act of the General Asser ^ly 
for the time being shall be ordered and directed." 

For the purpose of giving effect to this Act, two Acts were sub- 
sequently passed by the General Assembly of the Province, the one 
to be found in the second series of the Revised Statutes of Nova 
Scotia, chapter 27, intituled " Of the Coal Mines," and the other in 
the third series of the Revised Statutes, chap. 25, intituled "Of 
Mines and Minerals," in both of which the Legislature of Nova 
Scotia shews its understanding of the term " roy.alties " to be that 
which is ordinarily attached to it. By the 23rd sect, of the former Act 
it is enacted that, " the royalties reserved under imy lease gr.mted 
in pursuance of this chapter shall not be less than those now paid by 
any party holding a lease under the Crown of any mines or minerals 
in this Province," and by the 47th sect, of the latter Act it is enacted 
that "on all leases of gold mines and prospecting licenses to search 
for gold there shall be reserve i a royalty of three percent, upon the 
gross amount of gold mined," by the 55th sect, that "each licensed 
millowner shall separate from the yield or produce of gold of each 
lot or p trcel of quartz as crushed, three parts out of every hundred 
parts of such yield hs the portion thereof belonging and payable to 
Her Mitjesty ns royalty." 

By sect. 69, " The lessee of each mine shall be liable for royalty, 
upon all gold obtained from his mine in any other way thpn from 
quartz crushed at licensed mills, but he sIihU bo exempted from any 
claim in respect of gold obtained from quartz so crushed, the 
liability of the millowner for such royalty being hereby substituted 



1883 

Attorney- 
Geneual 

V, 

Mercer. 

Sup. C, 
Canada. 

G Wynne, J. 



*7^ 



I'RIVy COUNCIL. 



1883 

Attorsey- 
Genkual 

r. 
Meuceu. 

Sup. C, 
Canndii. 

Gwj'iine, J. 



instead of that of the lossco ;" and by sect. 102, " All licenses and 
leases of mines and minerals, other than gold mines, shall be snbject 
[GJ)5] to the following royalties to the Crown, to the use of the 
Province on the produce thereof, after it has been brought into 
marketolde condition, payable yearly from the period of their re- 
spective datas; that is to say, of live per cent, on all such ores 
and minerals, except gold, iron and coal ; of eight cento on every 
ton of iron and of ten cents on eveiy ton of 2,240 lbs. of co-il, 
which said royalties shall be paid to such person or persons at such 
times and in such pi ices as the licenses or leases shall respectively 
stipulate, or as the Governor in Council may from time to time direct. " 
By the Imperi'il Act 15 & 10 Vict. c. 39, after reciting 1st Wm. 
4, c. 25, s. 2, and 1st Vict., o. 2, s. 2, and that from the time of the 
passing of the said Act of 1st W.ii. 4, " the lands of the Crown in 
the colonies (save where special provision has been made in re- 
lation thereto by other Ai;ts of Parliament) hive been hitherto 
granted and disposed of, and the moncj's ar.sing from the sime, 
whether on sales or otherwise, have been appropriated by or under 
the authority of the Crown and by and under the authority of 
the Legislatures of the several colonies, as if the said Acts of the 
fir-st year of King William the Fourth and of the first year of 
her present Majesty had not been passed ; and whereas doubts 
have arisen whether the moneys arising as aforesiid in the said 
colonies may not be considered hereditary casual revenues within 
the meaning of the said Acts, and whether all or any part of other 
revenues arising within the said colonies, and being hereditary 
casual revenues within the meaning of t' e s:iid Acts, may bo 1 iw fully 
approi)riated to j)ublic purposes for the benefit of the colonies 
within which they may h we respectively oriseu ;" and to remove 
such doubts, it was enacted that: 

1. "The i>rovisions of the said recited Acts in relation to the 
hereditary casual revenues of the Crown shall not extend or be 
deemed to have extended to the moneys arising from the sale or 
other disposition of the lands of the Crown in any of Her Majesty's 
colonies or foreign possessions, nor in any wise invalidate or 
[696] atfect any sale or other disposition already mide or here- 
after to be mnde of such lands or any appropriition of the moneys 
arising from any such sale, or other disposition which might have 
been lawfully made if such Acts or either of them had not been 
passed. 

2. " Nothing in the said recited Acts contained shall extend or 



PRIVY COUNCIL. 



73 



t)0 deemed to liave extended to prevent any appropriation which, 
if tlio said Acts liiid not been passed, might have been hiwfully 
made by or with the assent of the Crown of any casual revenues 
arising within the colonies or foreign possessions of the Crown 
(otlior than droits of the Crown and droits of Admiralty) for or 
towards any public purposes within the colonies or possessions 
•in which the same respectively may have iiriscn : provided always 
that the surplus not applied to such public purposes of stich here- 
ditary casual revenues sha'l be carried to and form jjart of the s dd 
oonsolidated fund." 

From the debate which took plac3 in Parliament at the time of 
tlie passing of this Act, its object appears to have been to au- 
thorize the appropriation to colonial purposes of the Crown reve- 
nues in the colonies arising from waste lands or from mineral 
treasures, which the Acts of 1st Wm. 4 and Jst Vict, were regarded 
fls appropriating to the consolidated fund of the United Kingdom 
and ^o contirm the appropriations which had then already been made 
of I hose revenues by Acts of the colonial Legislatures, and to make 
the above named Impeiial Acts apply only to directing the appro- 
priation to the consolidated fund of the United Kingdom of any 
surplus remaining after the apidication of whatever might be neces- 
sary for the advantage of the colony. What surplus there was 
expected to be a'ter the appropriation by the colonial Legislatures 
of what they should, by Act of Parlisiment assented to by the Crown, 
declare to be necessary to be expend'id lor the benefit of the colony, 
it is tiifficult to understand ; but the Act expressly declares tliat 
such moneys arising from such revenues as shall not be applied to 
the public purposes of the colony shall be carried to and I'urm part 
of the consolidated fund of the United Kingdom. The Acts of 1st 
[0!)7] Wm. 4 and It Vict, being by this Act held to apply so far 
t) such surplus moneys arising from the surrendered Crown reve- 
nues within the colonies, it would seem but reast)nable to hold that 
the proviso in tlie 12th sect, of those Acts which saves to the Crown 
the exercise of its prerogative royal of grace and bounty should 
api)ly also if the question was w^liether the Crown did or did not 
possess that prerogative right in Canada immediately before the 
l)assing of the B. N. A. Act. There are, moreover, two colonial Acts 
of those referred to in the preamble of 15 & 16 Vict., c. 39, as dis- 
poning of the lands of the Crown in the colonies notwithstanding 
1st Wm. 4 and 1st Vict., which it will be proper to refer to in this 
connection, namely, 4 »& 5 Vict., c. 100, and 12 Vict., c. 31, of tbe 



1883 
ArroitNEY- 

GKXlilt.VL 

I'. 
Meuckb. 

Sup. C, 
Canada. 

Gwynue, J. 



^ 



74 



PRIVY COUNCIL. 



1883 

Attounkt- 
Gengual 

?'. 
Merceu. 

Sup. C, 
Canada. 

Gwynne, J. 



Acts of the Lc|,'is]ature of Canada (I). By the former of these 
Acts, intituled "An Act i'or the disposal of Public Lands," after 
reciting that it was "expedient to provide by a law applicable to all 
parts of this Province for the disposal of public lands therein," it 
wa« in the 2nd sect, enacted, that, except as thereinafter provided, 
" no free grant of public land shall be made to any person or per- 
sons whomsoever," and by the latter, after reciting that it was expe- 
dient to amend and extend the provisions of the former Act, " as well 
as to remove certain doubts which have arisen as to the intent and 
meaning of some of the provisions of the said Act ; and whereas by 
the 2nd sect, of the said Act it is enacted, that, with certain excep- 
tions thereinafter provided, no free grants of public land shall be 
made to any person or persons whatsoever; and whereas doubts 
have been entertained whether the same does not preclude Her 
Majesty from the exercise of her royal grace in the relinquishment 
of her rights to escheats and forfeitures in favour of those near of 
kin, or otherwise connected with the parties last seised thereof , and 
[698J it is expedient to remove all such doubts," it was declared 
and enacted " that the 2nd section of the said Act extends and 
shall be deemed to have at all times extended to such lands only as 
no patent deed hcd ever issued for, and not to such as having been 
once granted by letters patent had subsequently become vested in 
Her Majesty either by act of the party or by operation of law. " 

We have here a plain definition of the term " public lands " of 
the Province as understood by the Legislature, a term which has 
ever since been used and understood in the same sense ; and from 
the preamble to this Act we can gather that the same Legislatare 
which recited as a reason for passing it that it was desirable to 
remove doubts which had been entertained whether the 2nd sect, 
of 4 it 5 Vict., c. 100, did not preclude Her Majesty from the exer- 
cise of her royal grace in the relinquishment of her rights to escheats 
and forfeitures in favour of those near of kin or otherwise con- 
nected with the parties Lifet seised could never have intended, by 
the Act of 9 Vict., c. 114, to preclude Her Majesty from- the like 
exercise of her royal grace ; this Act, in fact, seems to involve a 
recognition of the right of Her Majesty to exercise such right in 
the case of lands become escheated or forfeited in Canada. By the 



(1) [The Acta 4 & 5 Vict., c. 100 
and 12 Vict., c. 31, were repealed by 
16 Vict, c. 159, B. 1. The Act 16 
Vict., c. 159, is consolidated in Con. 



Stat. C, c. 22. The provisions of 
12 Vict., c. 31, here referred to, were 
not re-enacted either in 16 Vict., c. 
159, or in the Con. Stat., c. 22.] 



PRIVY COITN'CIL. 



<o 



Gth sect, of 17 & 18 Vict., c. 118, winch was an Act passed to 
empower the Lej,'i8liituro of Canada to alter the constitution of the 
Legislative Council (»f that Province, the restraint imposed upon 
the Legislature of Canada, by the 42nd sect, of 3 iV: 4 Vict., c. 35, was 
removed, tliat section was repealed, and it was enacted, notwith- 
standing anythijig in 3 it 4 Vict., c. 33, or in any other Act of Par- 
liament contaimd, it shovdd be lawful for the Governor to declare 
that he assents to any bill of the Legislature of Canada or for Her 
Majesty to absent to any such bill if reserved for the signification of 
[G99] Her Majesty's pleasure thereon, although such bill " shall not 
have been laid before the saifl Houses of Parliament ; and no Act 
heretofore passed or to Ije passed by the Legishiture of Canada shall 
be held invalid or ineflVctual by reason of the same not having been 
laid before the sai«l House;*, or by reason of the Legislative Council 
and Assembly not having presented to the Governor such address 
as by the said Act of Parliament ia required." 

By 28 & 29 Vict., c. 63, s. 2, intituled " An Act to remove doubts 
as to the validity of Colonial Laws," it was enacted that, — 

" Any colonial law which is or shall be in any respect repugnant 
to the provisions of any Act of Parliament extending to the colony 
to which .such law may relate, or repugnant to any order or regula- 
tion made under authority of such Act of Parliament, or having in 
the colony the force and effect of such Act, shall be read subject to 
such Act, order, or regulation, and shall, to the extent of such 
repugnancy, V>ut not otherwise, be and remain absolutely void and 
inoperative." 

We find then, that immediately preceding the passing of the 
B. N. A. Act, all Acts of Parliament dealing with this subject, from 
Ist Wm. 4, dealt with it as forming part of the hereditary casual 
revenues of the Crown within the colonies which had been surren- 
dered by the Crown provisionally in return for a civil list, in whicli 
revenues the Crown retained a reversii nary interest, after tlio 
times named during which the civil lists contracted fi>r were granted. 
We find also that the statute of the Legislature of New Brunswick, 
which had dealt with the subject, specially reserved to the Crown 
the prerogative right of exercising the royal grace and bounty by 
making any grant or restitution of any property, real or personal, 
or the produce thereof to which the Crown should become entitled 
[700] by escheat for want of heirs or next of kin, oj by reason 
of any forfeiture as Ist Wm. 4 and Ist Vict, had done in England, 
and the first position taken by Mr. McDougall in his very able 



1883 

Attornky- 
Genehal 

V. 

Meucer. 

Sup. C, 
Canada. 

Gwynne, J, 



-i 



"W 



70 



PlIIVY COUNCIL. 



1883 

Attoiinkv- 
Gknkkal 

r. 
Meucku. 

Sup. C, 
Canada. 

Gwynne, J. 



aiguiiujiit, as I understood it, was, lliat the effect of that Act, as 
well as of sovoral of the Iiu]>urial Acts aV)ovo cited, was to maintain 
inviolate to the Crown the same exercise of the royal grace and 
liounty in respect of property devolving upon tlie Crown by 
esclieat and forfeiture in Canada and Nova Scotia; the conclusion 
drawn being that the power of appropriation of the Legislatures 
of the old Provinces prior to confederation is to be regarded as 
affecting only so much, if any, of such revenues as should remain 
after the full and free exercise by the Crown of its prerogative 
right of makinj? grant and restitution of all escheated or forfeited 
property or of the produce thereof (after deducting the expenses 
attending finding the property of the Crown) to any person having 
claims upon the person whose estate the escheated or forfeited 
property was ; and that since confederation tlio exercise of such 
prerogative right cainiot be interfered with by any Provincial 
authority, or by Provincial legislation, liut tlie ([uestion, as it 
appeai-8 to me, is not whether before the passing of the B. N. A. 
Act, the Crown did or did not retain the royal prerogative right 
within the Provinces of Canada, Nova Scotia and New Brunswick, 
but had the several Legislatures of tliose Provinces power of ap- 
propriation over escheated and forfeited property within these re- 
spective Provinces — that is to say, iu other words, could the Queen, 
by and with the advice and consent of the Legislative Councils 
and Houses of Assembly of those respective Provinces, liave made 
any appropriation of those revenues as .should seem fit to them, 
although different from what appropriation had already been made 
by legislation over such revenues accruing within those Provinces 
[701] respectively ? And I think that in view of the long con- 
tention maintained by the Legislative Assembly of Canada upon 
the subject, which is so empathically asserted in the preamble of 
the Canada Statute 9 Vict., c. 114, which had been assented to by 
Her Majesty upon the authority of the Act of the Imperial Par- 
liament specially passed for that purpose, the jiosition asserted in 
the preamble of the Canada statute must be taken to be admitted 
by the Imperial Act passed to give it effect, and in view of the 
provisions of 17 & 18 Vict,, c. 118, and in view also of the practice 
which had become engrafted upon the colonial constitutions with the 
sanction of the Imperial Parliament, it cannot, I think, now be 
questioned, that the respective Legislatures of Canada, Nova Scotia 
and New Brunswick, that is to say, Her Majesty, by and with the 
advice and consent of the Legislative Councils and Houses of 



PUIVY COUNCIL. 



77 



AsBeiably of those rospectivo Provinces, liad before the pnssinj;^ of 
tiio B. N. A, Act power of iippropriiition over ftll the tei*ritorial 
an<l casual reveiuios of the Crown accruing within those respeclivo 
Provinces, whatever may have boon contemplated hy tlie ecjuivocal 
nseivation of the very c<mtingent surftlus wliich the Imperial 
statute, 15 & 1(5 Vict., c. 3!), intendeil to appropriate to, and make 
part of the consolidated fund of tlie United Kingdom. 

Now, tliat the B. N. A. Act places under the absolute sovereign 
control of the Dominion Pri'liamont all matters of every descrii)tion 
not by the Act in precise terms exclusively aHsigne<l to the Legis- 
latures of the Provinces, which by the 5th sect, of the Act are 
carved out of and subordinated to the Dominion, cannot, in my 
judgment, admit of a doubt. It was admitted by the learned coun- 
sel who represented the Provinces in the argument before us, 
that this was true with respect to all matters of legislation, but 
[702] it was contended that when the Act deals with "property" 
the rule was inverted, and that the Provinces take "all pro- 
perty " not by the Act in precise terms given to the Dominion. 

The sole foundation for this contention appears to me to be 
based upon an assumption which in my judgment is altogether 
erroneous, namely, that the B. N. A. Act transfers as it were the 
legal estate in the Crown property from the Crown, and vests it 
in the Dominion and the Provinces respectively as corporations 
capable of holding property, real and personal, to them, their suc- 
cessors and assigns for ever ; but the Act contemplates no such 
thing ; its design as to " properties " as to everything else which 
is appropriated to the use of the Provinces, and therefore placed 
under the legislative control of the Provincial Legislatures, is to 
specify those properties which being still as before vested in the 
Crown, shall be under the exclusive control of the Provincial Legis- 
latures. And so likewise with respect to the properties assigned 
for the purposes of the Dominion, control and management over 
property vested in the Crown for public puiposes is what the Act 
deals with, not with the legal estate in such properties, divesting 
the Crown thereof and transferring the legal estate in some to the 
Provinces and in some to the Dominion as corporations, and indeed" 
what we are called to adjudicate upon is a question directly affect- 
ing the legislative jurisdiction of the Provinces, namely, is or 
is not the Act of the Legislature of Ontario, which professes to 
deal with the property in question, which is admitted to have devol- 
ved upon Her Majesty jure corona) by escheat, ultra vires of the 
Provincial Legislature? 



1883 

Attoknky- 

GKNKIlAIi ■ 
V. 

Mkkcku. 

Sup. C, 
Cunuda. 

G Wynne, J. 



i 



rr 



98^ 



•8 



PRIVY COUNCIL. 



1S83 

Attoknky- 
(Jkxkuai. 

I'. 

Mkuceh. 

Sup. C, 
Canada. 

Gwynne, J. 



Nuithur can it admit of a doubt, as it appears tu me, that the juris- 
diction which U expressly given t(» tiie Provinces by the 12th item 
[7(>:i] of sect. !»2 of tlie Act over " property and civil rights in the 
Province," can have no bearing wliatever upon the question bef(jre 
us for, 1st, the pro}>erty with whicli we have to deal is, unless the 
B. N. A. Act by clear enactment makes it otherwise, property accru- 
ing to Her Majesty jure cornnro, it therefore cannot be taken from 
the Crown except by express enactment. These words, therefore, 
" property and civil rij^hts in the Province," cannot affect the prop- 
erty of Her Majesty. Wo nmst seek, therefore, in some other 
clause of the Act for authority to all'ect this property ; and secondly, 
these words liave no effect whatever to restrain the jurisdiction of 
the Dominion Parliament over property and civil rights in all the 
Provinces, in so far as any of the matters comprised in the enumer- 
ation of subjects in sect. 91 of the Act requires control over "prop- 
erty and civil rights in the Province." Those words therefore 
must be construed as conferring upon the Provinces jurisdiction 
only over the residuum of property and civil rights in the Prov- 
inces, not absorbed by the jurisdiction over that matter involved 
in the complete and siijireme control over the matters specially 
placed under the C(jnti<jl of the Dominion Parliament. Now, 
among the items so placed we lind " the public debt and property" 
specially mentioned in the first item of sect. 91, and for payment 
of the public debt it is to be observed that the consolidated fund 
of the respective old Provinces of Canada, Nova Scotia and New 
Brunswick (created by the B. N. A. Act the Dominion of Canada) 
had been formed, and in this fund and as part thereof, as the "public 
property" appropriated to meet the public debt, was comprehended, 
as we have seen, the casual revenues of the Crown accruing within 
the respective Provinces, in which cjisual revenues, as we have also 
seen, was comprised all property real and personal devolving upon 
[704] Her Majesty jure coronjs within the Provinces, whether 
propter defectum sanguinis or propter delictum tenentis. Now, of 
this jiroperty so forming part of the revenues constituting the consol- 
idated fund of the old Provinces which was the fund upon which 
the debts of those Provinces were charged, we find a most plain 
and unequivocal appropriation made by the 102nd sect, of the Act, 
namely : "All duties and revenues over which the respective 
Legislatures of Canada, Nova Scotia, and New Brunswick before 
and at the Union had and have power of appropriation, except 
such portions thereof as are by this Act reserved to the respective 



PRIVY COUNCIL. 



70 



Lugislaturos of tho ProvinccB, or are ntisud by them in acconliuice 
with the Bpecial powers conferred on them by this Act, sliall form 
one Consolidated Revenue Fund t<t bo appropriated for tlio public 
aurvice of Canada in the manner and subject to the charges in this 
Act provided," and among those charges, in sect. 104, we tind "the 
annual interest of the public debts of th« several Provinces of 
( anada. Nova Scotia and New Brunswick at tho Union." 

We have here, then, expressed in precise and unambiguous lan- 
guage, api)ropriation made of everything which formed part of tho 
consolidated funds of the several Provinces before confederation 
(except what by tho Act is particularly and expressly excepted 
tliereout and phiced under the control of the Legislatures of tho 
Provinces created thereby) for the fonnatiou of the cnnsoliu:Ui'd 
fund of tho Dominion of Canada, in return for the assumption i)y 
the Dominion (which the old Provinces were erected into and 
created) of the public debts of those old Provinces. The > lestion 
is therefore simply reduced to this : does any other, and if an,\ . 
what other pari o. the Ait which con.-<ti*utes the sole chsu'ttT 
alike of the Dominion and of the Provinces, except any, am', if 
[705] afly, what part of such consolidated fund of the Dominion 
of Canada from that fund, and place such excepted part undor 
tho control of the Legislatures of the Provinces. It is worthy 
of note here, in connection with what I have already s.iid in rela- 
tion to the argument as to the appropriation of property as distinct 
from "legislative functions," that the excepted part, whatever it be 
and in whatever clause of the Act it is found, is spoken of as being 
"I'eserved to the respective Legislatures of the Provinces," that is, 
as matter placed under the legislative control of and not as estate 
vested in the Provinces. 

Now, the only clause of the Act which can be contended to 
involve the exception referred to in the 102Dd sect, is the 109th, 
namely : "All lands, mines, minerals, and royalties belonging to the 
several Provinces of Canada, Nova Scotia and New Brunswick at 
the Uniim, and all sums then due or payable for such lands, mines, 
minerals, or royalties shall belong to the several Provinces of 
Ontario, Quebec, Nova Scotii and New Brunswick, in which the 
same are situate or arise, subject to any trusts existing in respect 
thereof and to any ii terest other than that of the Province in the 
same." 

We cannot, as I have already observed, read these words "lands, 
mines, minerals and royalties belonging to the several Provinces 



188.3 
Attounkt- 

(iKNKIlAL 

r. 
Mkkckk. 

Hup. C, 
Cuiiftdft. 

(■Wynne, J. 



I 1 !- 



! ■ 



80 



PRIVY COUNCIL. 



1883 

Attokney- 
Genekal 

v. 
Mehc'er. 

Sup. r.., 

CaiKuia. 
'G Wynne, J. 



. . . . at the Union," as meaning that the estate and property 
in those subjects shall be divested out of the Crown and be trans- 
ferred to and vested in the Provinces as corporations, but, inasinuch 
as this clause is to be read as expressing the exception out of the- 
consolidated fund referred to [in] the 102nd sect., that these sourcea 
of revenue, constituting portions of the territorial and casual revenues, 
of the Crown forming the consolidated fund of the Dominion of 
Canada, shall be excepted from the general appropriation of all 
revenues in that fund, and shall be regarded as the excepted part* 
which are by the 102nd sect, said to be "reserved to the respec- 
[706] tive Legislatures of the Provinces," and placed under their 
control. 

Now, what lands, mines, minerals and royalties can with propriety,, 
having regard to the manner in which those words have been used 
in other legislative language above (picted, be said to have belonged 
to the several Provinces of Canada, Nova Scntia and New Bruns-- 
wick at the Union ? None at all, it is plaiti, in any other sense 
than that the revenues arising from such properties belonging to. 
the Crown had been made part of the consolidated funds of the 
old Px'ovinces now constituting the Dominion of Canada, for the- 
public uses of these Provinces. " Lalids " which had been already 
granted by the Crown, and were at the time of the union vested 
in the grantees thereof, or in their heirs or assigns, cannot witli 
any degree of propriety be said to have been lands " belonging to 
the several Provinces . . . . at the Union," and it is only- 
such lands granted which could devolve upon Her Majesty jure 
coronaB by escheat and forfeiture, and for this reason it was thab, 
tlie Legislature of Canada, which was the chief of the parties to 
the framing of the B. N. A. Act and to the petition to the Imperial 
Parliament to pass it, and within the limits of which Province the 
property now in question is situate, declared by 12 Vict., c. 31, that 
the term " public lands " in the Province, which is but an equivalent 
expression to "lands belonging to the Provinces at the Union, "^ 
did not comprehend lands accruing to the Crown by escheat or 
forfeiture, and that they did comprehend only the ungrauted lands 
of the Crown in the Province, in which sense they have ever since- 
been understood. (1) 

These waste ungranted lands of tiie Crown, the revenues derived 
from which constituted part of the consolidated funds of the Pro-- 



(1) See note on pt 74^, ante.. 



PRIVY COUNCIL. 



81 



derived 
le Pro- 



vinces before the union were, as we know, appropriated to the public 
[707] uses of the Provinces ; but the lands so appropriated did not 
coi.-jtitute all the ungranted lands of the Crown in the Pro^•inceB. 
There were other lands of the Crown, the moneys arising from 
the sale c other disposition of which did not f(^rm part of such 
consolidated funds ; these lands were set apart and approp' iated 
for the actual residence thereon and occupation thereof by certain 
Indian tribes by whom they were surrendered to and became vested 
in the Crown, and others were surrendered by the Indians to and 
vested in the Crown for the purpose of being granted by the Crown 
and that the moneys arising tiurefrom sliould be applied for the 
benefit of the Indians. These lands are, by item 24 of sect. 91, 
placed under the control of the Dominion Parliment. The custom 
in the grants by the Crown of these lands was the same as in the 
grants of all other Crown lands, namely, to reserve ail mines and 
minerals, but the reservation thereof would accrue, as was provided 
with respect to the moneys arising from the sale of the lands, to 
the benefit of the Indians for whose benefit the lands were set apart. 
Such mines or minerals or the royalties accruing from the disposi- 
tion thereof could not have been appropriated to the public uses of 
the Provinces ; the " lands " therefore Avhich are referred to in sect. 
lUi) of the B. N. A. Act can only be construed to mean those 
ungranted, or public lands belonging to the Crown within the 
several Provinces of Canada, Nova Scotia and New Brunswick, the 
revenues derived from which before and at the Union, eiiected by 
the B. N. A. Act, had been surrendered by the Crown and made 
part of the consolidated funds of the Provinces ; and the words 
" mines, minerals and royalties " being in the same 109th sect, 
added to the word *' lands," this latter word must there be con- 
strued ill a limited sense, that is to say, as exclusive of the " mines 
[708] antl minerals " therein, which, if those words had not been 
added, the word " lands " might have been sufficient to compre- 
hend, but the section reserves for the " Legislatures of the Prov- 
inces," not only the mines and minerals, and royalties in or arising 
out of such lands, but also, "all mines, minerals and royalties^ 
belonging to the several Provinces ... at the Union " ; that is 
to say, not only all mines and minerals in the ungranted lands of 
the Crown in the several Provinces, the revenues derived from 
which have been aurrend red to and made part of the consolidated 
funds of the Provinces for the respective uses of the Prrivinces, but 
also all mines and minerals in the granted lands, and which by the 
6 



1883 

ATTniNET- 

Gknekal 

r. 
Mkuckh. 

Suj). C, 
Caiiivda. 

G Wynne, J. 



'J 



I 




1883 

Attorney- 
Geneual 

1'. 
Meucer. 

Sup. C, 
Canada. 

Gwynne, J. 



82 



PRIVY COUNCIL. 



grants had been reserved by the Crown, the revenues derived from 
which had been also made part of the said consolidated funds : the 
intention, however, of the 109lh sect, was to reserve for the " Legia- 
la'ures of the Provinces," created by the B. N. A. Act, not only 
the "lands, mines and minerals " as above described, but also th" 
moneys accruing to the Crown by way of royalties in mines already 
being worked under leases or licenses fiom the Crown (which 
moneys had also been appropriated to and formed part of such con- 
solidated funds), of which there were many in Nova Scotia, to 
regulate which, as we have .^een, Acts had been passed by the Legis- 
lature of that Province : the word " royalties," therefore, was 
tadded — the whole thus comprising all " lands " being t]:e ungranted 
lands of the Crown as they were accustomed to be granted, the 
revenue derived from the sale of which had been made part of the 
said consolidated funds, and all ''mines and minerals," as well 
those ui such lands as also in all lands already granted, the revenues 
from which mines and minerals had been appropri ited in like man- 
ner, and " the royalties " derived from such mines and minerals, 
or (to which may be added) from timber cut upon public lands, 
[70D] under licenses for that purpose, which had also been in like 
manner appropriated, and all moneys then, that is, at the union, due 
and payable for any of such lands, mines, minerals and royalties ; 
these words, mines, minerals and royalties, being used all in their 
natural and ordinary sense, and in the sense in which they were 
used in the above quoted statutes of the Province of Nova Scotia 
relating to " mines and minerals." We have thus a plain, simple, 
rational and natural construction put upon the clause in which these 
words constituting the exception referred to in sect. 102, are found, 
aud which accords with the provisions of all of the above quoted 
Acts relating to the same subject, and with the sense iu which the 
same words are used in some of those Acts. 

By giving to ihe words in the lOOth sect, their plain, natural and 
ordinary construction, we need not resort to the coustructiou 
pressed upon us by the learned counsel for the Provinces, which I 
must say appears to me lo be strained and unnatural, and to have 
been put forward as expressing what, iu the opinion of those 
learned counsel, should have been the disposition made in the 
B. N. A. Act by the framers thereof, rather thau what has been 
made, of property accruing to the Crown by escheat or forfeiture. 
It is with this latter point alone that we have to deal. Iu view, how- 
ever, of the dispoaitioD attempted to have been made of the property 



11 



PRIVY COUNCIL. 



83 



^alties ; 

their 

were 

Scotia 

simple, 

these 

I'ound, 

quoted 

ioh the 



ill question l»y th^ Legialnture of the Province of Ontario, in dero- 
gation o. the claims of the woman who had lived for so many yea s 
Avith the deceased as his wife, and of the young man their son who, 
though illegitimate, had been brought up by the deceased as, iind 
with the expectations of, a sou and under the name of the deceased, 
and in derogation also of the right of Her Majesty to exercise her 
prerogative of grace and bounty to repair the wrong done to 
[710] those injured persons, who to all seeming, though not iu law, 
filled the places of wife aud sou of the deceased (a prerogative which 
in like cases had uever been known to fail), we may be permitted to 
veuture the opinion, that thnse may be excused who doubt whether 
the placing the claims ol such persons under the control of the 
Local Legislatures would have been more prudent in any sense, or 
more calculated to promote the interests of justice and humanity, 
and to procure redress of the wrongs of the parties already cruelly 
injured by peihaps the unintentional accident of tlie deceased having 
died without a will, or best adapted to advance the real good of the 
jiiiblic, than to leave the matter still to be dealt with by Her Majesty, 
as it had always hitherti) been, for the protection of the injured, 
controlled only by the legislative authority vested in Her Majesty 
by and with tlie advice and consent of the Parliament of the 
Dominion. For the reason, however, already given, I entertain no 
doubt that control over all property in the several Provinces of the 
Dominion becoming escheated or forfeited to the Crown is placed 
under the exclusive control of the Dominion Parliament by the 
102nd sect, of the B. N. A. Act, and that no other clause or part of 
the Act exempts such property from such disposition ; the Act 
therefore of the Province of Ontario, 40 Vict. c. 3, which atl'ects to 
deal w ith such property is ultra vires and void, and the appeal in 
this case should be allowed with costs. 

As it did not appear to me to be necessary for the determination 
of the question before us, I have not followed the learned counsel 
in all their adverse criticism of the frame of, and of the expressions 
used in, the B. N. A. Act. I may, however, say that it is not, in 
my opinion, justly chargeable with the defects imputed to it, or 
open to the construction put upon it by the learned counsel who 
[711] represented the Provmces. In my judgment it expresses in 
sufficiently clear language the plain intent of the framers of that 
Act to have been, that the plan designed by them of federally 
uniting the old Provinces of Canada,-Nova Scotia and New Bruns- 
wick into one Dominion under the Crown of the United Kingdom 



1883 

Attornet- 
Genbkal 

V. 

Merckb. 

Sup. C, 
Canada, 

Gwynne, J. 



««neEa 



ii !5j 



84 



PRIVY COUNCIL. 



1883 

Attornky- 
Gknkral 

V. 

Mercer. 

Sup. C, 
Canada. 

Gwynne, J. 



.1 



of Great Britain and Ireland with a constitution similar in principle 
to that of the United Kingdom, was, to confer upon the Dominion 
so formed a quasi national existence — to sow in its constitution the 
seeds of national power — to give to it a national Parliament consti- 
tuted after the pattern of the Imperial Parliament, Her Majesty 
lierself constituting one of the branches thereof, and to constitute 
within that national power so constituted and called the " Dominion 
of Canada," certain suboi'dinale bodies called Provinces having 
jurisdiction exclusive though not " sovereign " over matters specially- 
assigned to them of a purely local, municipal and private character, 
to which Provinces, by reason of this jurisdiction being so limited, 
were given constitutions of an almost purely democratic character, 
of whose le;,'islatures Her Majesty does not, aa she does of the 
Dominion, and as she did of the old Provinces, constitute a com- 
ponent part, and to the validity of whose Acts, the Act which con- 
st!', utes their charter does not even contemplate the nssent of Her 
Majesty as necessary. The jurisdiction conferred on these bodies 
being purely of a local, municipal, private and domestic character, 
no such intervention of the sovereign consent was deemed necessary 
or ajjpropriate, so likewise the power of disallowing Acts of the 
Provincial Legislatures is no longer, as it was under the old consti- 
tution of the Provinces, vested in Her Majesty, but in the Governor- 
General of the Dominion in Council, and this is for the purpose of 
enabling the authorities of the Dominion to exercise that branch 
of sovereign power formerly exercised by Her Majesty in right of her 
[712] prerogative royal , but to be cxerc'sed no longer as a branch 
of the prerogative, but as a power by statute vested in the Dominion 
authorities (the royal prerogative being for that purpose extin- 
guished^ and to enable the Dominion authorities to prevent the 
Legislatures of the Provinces, carved out of and subordinated to 
the Dominion, fron^ encoaching upon the subjects placed under the 
control of the national Parliament by assuming to legislate upon 
those subjects which are not within the jurisdiction of the Provin- 
cial Legislatures. 

The appeal must be allowed with costs, the order overruling th© 
appellants' demurrer to the information filed by the Attorney-Gene-, 
ral of the Province of Ontario in the Court of Chancery of that 
Province di'-charged, the demurrer allowed, and the said informatioix 
dismissed with costs. 



~1 



PRIVY COUNCIL. 
Judgments in Ontario Court of Appeal. 



85 



1883 



[Reported 6 App. Rep. 576.] 



Burton, J. A. 



Attorney- 
General 

V. 

1 , , , , , Mercer. 
[584] I entertained great doubt upon the ai-gument whether the 

action of ejectment was not, by the Revised Statutes (1), substituted ' ^" ''^"Q« 

for the preliniinaiy process which was previously in use, and that if Burton, J.A. 

therefore an inquest of office would have been necessary but for the 

statute, the remedy substituted for it, and that alone, would have 

to be resorted to. 

It is not, in my view of the facts, necessary to consider that ques- 
tion, as I am of opinion, for the reasons so fully stated by my brother 
Patterson, that no inquest of office would have been necessary in the 
present case, and that the Crown is not under the necessity of .esort- 
inj,' to the statute, but can exercise the right of selecting its forum, 
and of instituting therefore the proceedings in the Court of Chancery 
that have given rise to this appeal. 

The important question, therefore, for decision is, whether pro- 
perty of this nature, since confederation, goes to the Dominion, or 
to the Queen for the uses of the Dominion, and not to the Quulu for 
the uses of the Province, for it is too late at this day to contend that 
the law of escheats pro defectu sanguinis does not exist, in this Pro- 
vince. Any such question must now be settled by a Court of ulti- 
mate resort. 

The learned counsel for the appellant dwelt at great length in his 
arguiii'^ut on the question of the prerogative of the Crown in matters 
of escheats, and traced the history of the surrender of the territorial 
and casual revenues by tlie Crown to the Province of Can.arla in 
aid of a permanent civil list, and the legislation sul>se(iuent to 
that surrender ; and contended that these funds having been 
surrendered and appropriated for a specific ol)ject, still remain 
part of the consolidated fund appropriated for the public service of 
the Dominion, and that escheats lorm a portion of these funds. The 
argument shewed much learning and reseai-ch on the part of the 
learned counsel, but, after giving to it full consideration, I humbly 
conceive that the solution of the matter is to be found in the inter- 
pretation to be given to the language of the B. N. A. Act, and that 
we need not look beyt tnd it. 

[586] I find no warrant in that Act for the assertion so frequently 
made, that all rights or property not expressly given to the Province 

(1) R. S. O., c. 94, 8. 1. " 






8G 



PRIVY CO[INCIL. 



Attorney- 
Grnekal 

V. 

Merceu. 
0. A., Ontario. 



1 ii 



1883 pass to the Dominion ; on the contrary, I take it to be clear that the 

Provinces retained all property and rights which were previously 
vested in them under the Constitutional Acts then in force, except 
those which by the Confederation Act are taken from them and 
transferred to the Dominion. 

In the distrilnition of the legislative powers the Parliament of 
Bur ton, J. A. Canada is authorized " to make laws for the peace, order, and good 
government of Canada, in relation to all matters not coming within 
the classes of subjects by this Act assij^ned exclusively to the Legis- 
latures of the Provinces," although the framers of the Imperial 
Act have endeavoured, by the enumeration of the classes of sub- 
jects upon which each should have the power of legislating, to confine 
eacli Legislature strictly within the bounds assigned to them ; bat 
when we come to the clauses dealing w^ith the property of the Pro- 
vinces, very dillerent language is nsed, and very different considera- 
tions arise. 

In the first place, the Provinces already existed with a constitu- 
tion of their own, with certain properties, rightsi, assets, and 
revenues, and these could only be taken from them by their own 
consent, or by the legislation of a superior authority. All lands 
belonging to the several Provinces were, previous to confederation, 
under our form or system of government, vested in the Sovereign as 
a mere matter of form, it being a simple trust for the benefit of the 
Provinces, but were then granted in the Qupen's name, by the 
several Lieutenant-Governors of the Provinces (with the exception 
of Canada, which was then under the immediate government of the 
Governor-Oeneral), and since confederation in all the Provinces, 
grants from the Crown of public lands are invariably made by the 
Lieutenant-Governors in Her Majesty's name. 

These lands then, though nominally the property of the Crown, 
were in truth and io fact the property of the Province, were entirely 
[586] under the control of the Executive and Legislature of the 
Province, and although the right of escheat, which is sometimes 
spoken of as a species of reversion, was in the Crown, it was always 
exercised for the benefit of the parties beneficially interested in such 
reversionary interest, or, in other words, the Government of the 
particular Province in which the land was situated. 

This right then, as well as the lands themselves, belonged to the 
Province, and when we refer to the Imperial Act dealing with these 
subjects, what do we find ? 

By sect. 109, all lands belonging to the several Provinces of 



PRIVY COUNCIL. 



87 



Attornkt- 
Geneual 

V. 

Mekceh. 
C. A., Ontario 



to the 
these 

Ices of 



Canadi, and all sums then due and payable for such lands, shall be- 1883 

long (o the several Provinces ol Ontario and Quebec in which the 
same are situate, subject to any interest other than that of the 
Province in the samo. 

The teri.i " all lands " must be held to include any interest which 
the Province then held, or was entitled to, in the lands, including 
any reversionary interest, or interest incident to the tenure ; if not, Bur ton, J. A 
no disposition whatever is made of such interest, and it will remain 
in Her Majesty, not impressed with any trust, r. result which it 
would be too absurd to suppose, but yet that would be the result, 
treating it as a reversionary interest or mere incident to the tenure, 
for in no portion of the Confederation Act is it given to the 
Dominion. 

The right can be regarded as a prerogative right to this extent 
and for this purpose only. That it is convenient, under our form 
of government, that the whole public domain shall be vested in 
Her Majesty, bxit purely and solely for the benefit of the Province. 
The land is under the sole control of the provincial authorities. 
Her Majesty's name is used by them in every grant from the 
Crown in the same way as in many other matters, as, for instance, in 
every writ which, under provincial legislation, issues from the 
Courts of law, and in the commissions which are issued for the 
appointment of Justices of the Peace and other provincial officials. 

Neither, then as a prerogative of the Sovereign, nor as an 
incident to the tenure, has the Dominion, in my opinion, made good 
its claim. 

I prefer to place my judgment on the ground I have indicated 
above, rather than on that adopted by the Court of Appeal in 
Quebec (1), although I think there is no material difference between 
them. 

I do not think the word revenues, used as it is in sect. 102 in con- 
nection with the word duties, can be held to apply to such property 
as this ; but, at all events, territorial revenues cannot be meant, as 
lands and their proceeds are reserved to the Province by sect. 109, 
and it would be a forced construction of that section to hold that 
this reservation did not include lands revested in the Province by 
reason of the failure of persons to inherit the land granted, or the 
happening of the contingency up ^n which it was understood the 
Province would again acquire a title to them. 

(1) See Attorney-General of Quebec v. Attomey-Oeneral of the Dominion, 
2 Quebec Law Rep. 236, post. p. 100. 






88 



PRIVY COUNCIL. 



Attounkv- 
Gknehal 

V. 

Meuc'kk. 



1883 If the claim of the Dominion wore once conceded, it must be 

regarded as controlling tlie general power of the Province to deal 
with projierty and civil rights ; in other worda, if, since confedera- 
tion, i>roiierty escheated to the Crown pro defectu sivnguinis becomes 
the i)ro]ierty of the Dominion, any attempt on the part of the Pro- 

'! ' ■ vincial Legislatures to alter the law of descent, and thus defeat the 

Burton, J. A. title of the Dominion to escheated lands, would be ultra vires ; but 
I regard the fact that this power of dealing with propertj' and civil 
rights is given to the local Legislatures, without any express limita- 
tion, as strongly indicative of the general intention that £his descrip- 
tion of property was intended still to vest in the Provincial authori- 
ties, or, what is the same thing, in the Queen for these authorities. 
I am of opinion that the judgment of the learned Vice-Chancellor 
is correct, and should bo affirmed, and this appeal dismissed, with 
costs. 



i 1 



• ^ 

■ 'l 



Patterson, J.A.: — 

The questions before us arise upon a demurrer by Andrew F. 
Mercer, one of the defendants, to an information filed by the Attor- 
ney-General ol' Ontario for the puqiose of obtaining possession of 
[588] land in the city of Toronto which was the property of Andrew 
Mercer, who is now deceased . 

The facts with wliich we have to deal are, therefore, those stated 
in the information. I shall m.ake a short statement of them. 

Andrew Mercer died in June, 1871, intestate, and without leaving 
any heir or next c f kin. 

He was, at the time of his death, seised in fee simple of the land. 

Immediately after his death the defendants entered into posses- 
sion of the land without the permission or assent of Her Majesty, 
and refused to give up possession to Her Majesty, or to the informant 
actin;^ on her behalf in this Province. 

In 1875 the defendant, Andrew F. Mercer, instituted a suit in 
Chanceiy against the Attorney-General, in which a decree was pro- 
nounced in accordance with the prayer of his bill, referring it to 
the Master to inqiiire whether the late Andrew Mercer left any 
heirs-at-law or next of kin him surviving. Pending that inquiry, an 
issue was tried at the instance of A. F. Mercer, which resulted in a 
decree that A. F. Mercer was not the lawful son and heir-at-law or 
next of kin of Andrew Mercer, and that the defendant, Bridget 
O'Reilly, the mother of A. F. Mercer, was never married to Audi ew 
Mercer ; and directing the inquiry formerly directed to be proceeded 



PUIVY COUNCIL. 



89 



ArrouNEY- 
Gknkkal 

r. 
Mekcek. 

C.A., (Ontario. 



with. That was done, and a decree was made, after a liearing on 1883 
further directions, dechvring that Andrew Mercer died intestate and 
without heirs or next of kin, and that by reason tliereof liis real and 
personal estate had become vested in Her Majesty in right of her 
royal prerogative. These decrees were duly signed and enrolled. 

The demurrer was overruled by Vice-Chancellor Proudfoot, and 
the defendant, Andrew F. Mercer, appeals from that decision. ' 

Four points have been made (.n his behalf. 

First : The application of the law of escheat to lands in this 
Province is disputed. 

[580] Secondly : It is asserted that, if the right exists, it belongs 
to the Dominion and not to the Province. 

Thirdly : It is contended that the Crown can only proceed by 
the common law process of inquisition of office. 

And fourthly : That if im^uisition of office has been rendered un- 
necessary by the Ontario Aot of 1877, R. S. O., c. 94, the only sub- 
stituted remedy is an action of ejectment, and the Court of Chancery 
has therefore no jurisdiction. 

The third and fourth points probably involve the same question, 
but for the sake of distinctness they may be treated separately. 

The first point was not much pressed by counsel ; but, in con- 
nection with it, reference was made to the old feudal tenures to which 
escheat was incident, and to the introduction of free and common 
socage as the tenure upon which the Act of 1791 required grants 
of land in this Piovince to be made. 

It is not necessary to follow the discussion of these topics, inter- 
esting though they may be, because they are really beside the ques- 
tions with which we are conc.rned. 

We only know that Andrew Mercer was seised in fee simple. 
We are not informed how or when the land fiist passed from the 
crown. Lands in fee are held of some superior lord. "It is a 
man's demesne, dominicum, or propi rty, since it belongs to him 
and his heirs for ever ; yet this dominicum, property or demesne, 
is strictly not absolute or allodial, but qualified or feudal ; it is his 
demesne as o//ce; that is, it is not purely and simply his own, 
since it is held of a supei ior lord, in whom the ultimate property 
resides." (1) 

If held in socage, it is suflicient to note from Blackstone (2), 
that " Escheats are equally incident to tenure in socage, as they 



(1) 2 Bl. Com. p. 105. 



(2) Vol. 2, p. 89, 



90 



PRIVY COUNCIL. 



1883 

Attounky- 
Gkneral 

v. 
Mkix'er. 

C.A., Ontario. 
Patterson, J. A. 



K 



were to tenure by knight Rervice ; except only in gavelkind lands, 
which are . . . aubjoct to no escheats for felony, though they 
are to escheats for want of heirs." 

[590] The aigument against the application of the doctrine of es- 
cheat to any class of property is incimiplete, unless it points out 
where the title is to vest — who is the ultiinus hrores •. and this in- 
quiry, being answered in most civilized communities in the one 
way, is fatal to the argument. I should say that as I apprehonded 
the learned counsel for tlie appellant, although he took this point, 
he took it rather as loaling up t > the other, which I have to notice 
in its proper place, that if we adopted escheat as an ir.cident to 
the tenure of our lands, we took with it the nece.ssity of enforcing 
it according to the ancient procedure, by inquest of office. 

In considering the second objection, viz., that which denies the 
right of the Province as against the Dominion, I have but little 
to add to what was said by the learned Judges of the Queen's 
Bench of Quebec, in Attorneij-Gencral of Quebec v. Attorney-General 
of the Dominion (Church v. Blake) (1), in deciding a similar ques- 
tion in favour of the Province. I agree with them in the conclu- 
sion at which they arrived, and in the general tenor of the argu- 
ments upon which that conclusion is rested. If I have any reser- 
vaticr;, it is with reference to one argument which was advanced 
again before us by counsel for the respondent. I allude to the 
susjgestion that the Local Legislature has power to enact that upon 
death, intestate and without heirs, the property of the deceased 
shall vest in illegitimate offspring or pass to some other destination, 
as t ) charitable institutions or the like. I have not been able to 
see that such legislation would be intra vires, if it is granted that, 
without it, the property would escheat to the Dominion, and partic- 
ularly if the escheat is properly regnrded as a kind of reversionary 
interest. The argument seems to me to verge upon a petitio principii. 
It is, however, only employed by way of illustration, and leaves the 
force of the decision unaffected. 

I think there is great force in the contention that the escheat 
is of the nature of a reversion, and is therefore an interest in land, 
and is secured to the Province as "land," even without resorting 
[591] to the term "royalty," by sect. 109 of the B. N. A. Act. I 
think at the same time that the principle applied by Mr. Justice 
Ramsay in his judgment in Church v. Blake (1), to the interpretation 



(1) 2 Quebec Law Rep. 236, post, p. 100. 



PllIVV COUNCIL. 



91 



Attohnkt- 
Gknkuai. 

V. 

Mkkckr. 
C.A., Ontario. 



of tho word "royalty," ia fairly applied, and that we are not com- 1883 

jpclled by any rnlo fif construction to narrow its ordinary significa- 
tion. We can scarcely lefer t) definitions of eschevt in tho hooks 
without finding some allusion to the reversionary character of the 
riijht. Thus Bl. Com., Vol. I., p. 302: "Another branch of tho 
King's onlinary revenue arises from escheats of lands, which happen 
upon the de'ect of heirs to succeed to the inheritance ; whereupon " ^'^^""' " * 
they in general revert to and vest in th'> King, who is eateenied. 
in the eye of the law, the original proprietor of all the lands in the 
kingdom." And in Vol. 2., p. 72 : "The last consequence of tenure 
in cliivalry was escheat ; which is the determination of the tenure, 
or dissolution of tho nmtual b<md between the lord and tenant, 
from tho extinction of the blood of the latter by either natural or civil 
means. . . In such cases the land eschented or fell back to the loi d 
of the fee." And at p. 2il : " Tho word itself is originally French or 
Norman, in which language it signifies chance or accident ; and 
with us it denotes an obstruction of the course of descent and a 
consequent determination of the tenure, by some unforeseen con- 
tingency : in which case tho land naturally results back, by a kind 
of reversion, to the original grantor or lord of the fee." In 
Chitty on Prerog., at p. 227, similar language is employed, and he 
adds : " It is in this pniHt of view that Bracton terms escheat a 
species of reversion." So Lord Mansfield said in Burgess v. 
Iflieate (1) : " It has been truly said, in the beginning of the feudal 
tenure this right was a strict reveri-ion. The grant determined by 
failure of heirs ; tho land returned as it did upon the expiration 
of any le*a temporary interest. 'Twas no fruit, but the extinction 
of tenure (as Mr. Justice Wright says), 'twas the fee returned." 
And so the doctrine is uniformly stated in American authorities. 
[592] I merely add these observations to the discussion of the 
question in the case of Church v. Blake (2), and do not attempt 
an exhaustive or independent examination of it, as I am satisfit d 
to follow that decision. 

I now come to the third point, which asserts the necessity for in- 
quest of oflSce. 

"The principal rule with respect to oflSces is, that they are not 
necessary when the King's title already appears in any sJuipe of 
record :" (Chitty on Prerog. 248). 

We must take judicial notice that all lands in this Province are 



m 



(1) 1 Wm. Bl. 123, 163. (2) 2 Quebec Law Rep. 236, past, p. 100. 



f 



w 



92 



PUIVY COUNCIL. 



x\rr()UNKT- 

(iKNKUAL 

V, 

Mkuckr. 
T3.A., Ontario. 



1883 helil directly from the Crown, and not under any mesne lord, and 

that all giants from the Crown are of record. Andrew Mtrcer, 
holding in tee simple, theiefuie held as tenant in capite. The 
only qnestion which at any time caused mo to hesitate as to iufiuenit 
ever heing neceHsary was what seemed to me the possible necessity 
for a Hnding of record that the tenant died without heirn. I do not, 
Patt crHuii, J.A. however, find anything to countenance a doubt of the kind. On the 
contrary, it seems to be everywhere broadly laid down> that upon 
the death of the King's ^enant, without heirs, no office of entitling 
is necessary. 

In Viner's Abr. Office or Inquisition, D. pi. 10, 11, it is said: 
" Tlie King may be seised without office. As where the King's 
tenant dio^i without heir. Note. — It seems that entry by a stranger 
shall not alter the case." 

In Due d, Ha)jne v. Iledfern (1) Lord EUenb )roug!i, discussing the 
return to the inquisition in that case, which had not found of whom 
the lands were holden, said : " The cases of the King's tenants in 
oapite, and his other known tenants, bear no analogy to this case ; 
because there the tenure was of record, and upon the tenant's death, 
the King was entitled to take seisin of the land, and to receive the 
profits to hisj own use, till the heir appeared to claim the land and 
receive investiture ; and if the heir were under age, the King was 
entitled to wardship ; if of full age, to primer seisin or rulief ; and if 
there were no heir, the King's seisin was of course indel'easil^le. 

The circumstance that the defendants are in occupation was urged 
[593] on behalf of the appellant for two purposes, viz., to show that 
there beiiig some one to perform the feudal services, there should be 
no escheat, and further, as creating a difference between this case 
and one in which the possession was vacant. 

The delendant is in possession, on the facts before us, as a stranger. 
The allegation in the information is not that he was in possession 
when Andrew Mercer died, but that he entered immediately after 
the decease. But, either way, I do not find th it his presence there 
renders office necessary. 

The whole objection is, however, covered, conclusively to my 
mind, by what appears in the information, where we are told 
that the fact is found of record that Mercer died intestate and 
without heirs. It has been so found in proceedings instituted by 
this del'endaut himself. I do not know that that circumstance 



(1) 12 East 96, 110. 



I'UIVY COUNCIL. 



93 



Attouney- 

(tKNKU.VI. 
V. 

Mkkc'kk. 
C. A., Ontario, 



makes the matter much stronger, but if any rincstion cnulrl have 1883 

boen raisoil, the remark niiule by the Maate- "" the Rolls, in Ihtrfjens 

V. Jr/H'(/t' (I), would be apposite ; " But if any one olae," he said, 

"could have made the objection, Burgess cannot, for ho brought 

the Crown here firs* and so is estopped. In Sir John IVanleiiH Case, 

before Lord Talbot, there was an ol)jection for want of jurisdiction 

here, and that the matter was properly triable at law. But it being Pft"""-«ioii. J.A. 

disclosed that he had filed a cross bill, the Ccuirt did not enter into 

that objection, but saiil the defendant had (jivn a jurisdiction." 

And see Scripture v. Curtis (2). 

I think there is no point of view in which the title of the Crown 
does not appear of record ; and therefore, on the strictest rujo, no 
office was necessary. 

Had office been P"icessary at common law, I have not formed a 
final opinion as to -> ' ether that necessity has been removed by the 
statute 11. S. O. , c. 94. The inclination of my opinion has been, that 
the true construction of that statute merely substitutes ejectment 
for inquest of office. There are considerations of weight, some of 
wliich have been pressed upon us, for refusing to extend by any 
[594] liberality of construction the necessary effect of that legisla- 
tion. But, no office being necessary in the circumstances of this 
case, it is not incumbent on the Crown to resort to that statute at 
all. The position comes to this : the Crown being entitled to the 
land, finds an intruder in possession. Whatever remedj', therefore, 
is appropriate to the recovery of land, the title to which is undis- 
puted, but the possession of which is wrongfully withheld, must be 
available ; and we are merely entertaining, at the instance of the. 
Crown, a suit such as has lately become common in Chancery 
between subject and subject, and which, apart from the prerogative 
right to resort to whichever Court the Crown shall choose, is within, 
the ordinary jurisdiction as now established. 

My opinion is that this appeal must be dismissed, with costs. 



Moss, C. J. O., (3) and Mokrison, J. A., concurred. 



(1) 1 Wm. Bl. 123, 132. (2) 11 U. C. 0. P. 345. 

(3) [Moss, C. J., had prepared a judgment in this case, which by some means, 

was mislaid.] 



T 



1888 



ATTOnXET- 

Gknkual 

V. 

Mehcku. 
Chy. , Ontario. 
Proudfoot, \'.C. 



94 PRIVY COUNCIL. 

Judgment in Ontario Coubt of Chancery. 
[Eeported S6 Grant, 126]. 

Proudfoot, V. C. : — 

[127] This is an information by the Attorney-General of Ontario 
against Bridget O'Eeilly, Andrew F. Mercer and Catharine Smith, 
stating that Andrew Mercer, late of the City of Toronto, died on 
the thirteenth of June, 1871, intestate and without leaving any heir 
or next of kin, whereby the real estate of the said Andrew Mercer, 
in Ontario, became escheated to the Crown fur the benefit of tliat 
Province. Tliat he ilied seised of certain specified real estate. 
That immediately upon his death the defendants entered into posses- 
sion of it without the [permission or assent of Her Majesty, and 
have continued in possession and refuse to give up the pt)Ssession to 
Her Majesty. Tliat possession was demanded on the twenty-tirst of 
September, 1878, but the defendants refuse U> deliver possession. 
The defendant, Andrew F. Mercer, demurs lor want of equity. 
For the demurrer it was argued : 

1. That this Court ]ias no jurisdiction in cas^es of escheat, assum- 
ing that cases of escheat per defectum sanguinis are known to our 
law. 

2. That the doctrine of escheat does not apply to lands held in 
free and common socage. That it is not a doctrine of the conuuon 
law ; that it is a feudal doctrine and applicable only to feudal tenures. 

3. That if the Queen is entitled, the Attorney-General of Ontario 
is not entitled to represent her, and to appropriate the escheats to the 
uses of the Province. 

4. If escheats exist, this is not the proper mode of procedure to 
obtain possession. 

I shall consider these objections in the order in which they were 
presented. 

The information is practically an ejectment suit, resting upon a 
legal title, and seeking to obtain possession of the property in ques- 
tion. But this Court has recently held, after much consideration, 
[12°] that the Queen may select any of her courts to assert her 
rights whether legal or equitable, and this independently of the 
Administration of Justice Act. It was held also in the same 
case that, although the Act does not name the Crown, the Crown 
may take advantage of its provisions. And the Act declares that 
this Court shall have jurisdiction in all matters which would be 



tl 



B) I 



PRIVY COUNCIL. 



95 



Attorney- 
Geneual 

Meucer. 

Chy., Ontario. 



cognizable at law (1). Theretore, even if the Act be ultra vires, 1883 

still this case is brought in a proper forum. 

The tenure of free and common socage is well known to tlie law 
— it existed through all the period of the feudal tenures, and was in 
fact a feudal tenure itself. The Act of Cliarle.s 2 abolished the 
military tenures but did not create the socage tenure ; it found it in 

existence and changed the others into it. The incidents connected ' 

with this tenure before that time continued to be attached to it. 
When the Act of 1791 declared that lands in Canada should be 
granted in free and common socage, it tlierefore introduced the 
tenure with all its incidents and consequences. One of the.se conse- 
quences was the liability to escheat : " All lands and tenements held 
in socage, whether of the King or of a subject, are liable to esclieat." 
Cruise Dig. : 3. 401. This is inherent in the tenure, an essential 
part of it, and imposes no restriction upon the owner. Ue hail the 
power to dispose of it as he pleased during his life, and he m'^'ht 
have devised it by his will : when he does neither, and dies without 
heirs, it is no restriction of his title to say that it .--liall revert to the 
Crown. 

IJut it is a mistake, T apprehend, to imagine that the doctrine of 
escheat to the Crown for want of heirs is only a feudal doctrine. It 
has a f ' lundation much more ancient, and rests upon principles of 
general application, independent of any relation to feuds, lilack- 
stone (2) says that in such a case, "to prevent the robust title of 
[129] occupancy from again taking place, the doctrir.e of escheats is 
adopted in almost every country ; whereby the Sovereign of the 
state and those who claim under his authority are the ultimate 
heirs, and succeed to those inlieritances to which no other title can 
be formed." It was a maxim of the Roman Jurisprudence that the 
proijerty of those who died intestate, and without legitimate heirs, 
belonged to the state. " Scire debet gravitas tua, intestatorum res, 
qui sine legitimo haerede decesserint tisci nostri rationibus vin- 
dicandus " (3). And Domat, the celebrated French Jurist, refers 
it to this principle, that property which has no owner passes 
naturally to the use of the public and accrues to the Sovereign who 
is its head, and that in France it passed to the King (4). And I 
apprehend that similar dispositions will be found in most of the 
European nations which derived their jurisprudence from the Civil 

(1) Attorney-General v. Walker, 25 Grant, 233. (3) Cod. 10, 10, 1. 

(2) Vol. 2, p. 11. (4) Dom. Loi? Civ. Lib. 4, tit. 8. * 









1 



96 



PRIVY COUNCIL. 



1883 

Attokxkt- 
Genkkal 

V. 

Mekceu. 



Law. The Code Nap. (a. 559) enacts that the property undispi'Sed of 
of those who die without heirs belongs to the public domain. And 
the propriety of some such provision is also evidenced by the enact- 
ments of the neighbouring States to the same eft'ect. It ia no harsh 

rule therefore of an obsolete or antiquated state of society, stretch- 
Chy., Ontario. . ., , ,. , • ,i ,• i . , . , • i •• 
ing its baneful influence over times and circumstances to which it 

I'rou dfoot , v.c. ^y..^g never intended to apply ; but it is an enlightened provision of 

the policy of many, if not all, civilized States, to prevent the anarchy 

and confusion that would arise from permitting the robust title of 

the strong hand to be asserted. 

The sect. 401 of the Lower Canadian code was referred to as 
shewing that an enactment was necessary to confer this right on the 
Crown. But that code was not a system of new laws ; it was a 
codification of those that were in force before it was drawn up, and 
it rather proves the right as a part of previous Provincial law on the 
subject. 

[ ' .30] Bjj^ some strange misconception it was said that gavelkind 
lands do not esch< at, and therefore that lands under our system of in- 
heritance similar to that of gavelkind ought not to escheat. Black- 
stone (1) is quoted for this ; but he is there treating of escheats 
from corruption of blood from treason or felony, and he says that 
gavelkind lands are in no case liable to escheat for felony, though 
they are liable to forfeiture for treason. But even that is too gen- 
eral a statement, for if a tenant in gavelkind, being indicted for 
felony, absent himself, and is outlawed after proclamation made 
for him in the county, his heir shall reap no benefit by the custom, 
but the lands shall escheat to the lord. (Cruise Dig. 3. 401 .) There 
is not a word, however, to estjiblish the assertion that such lands 
do not escheat for want of heirs. 

The expression quoted by the learned counsel for the defendant, 
from the opinion of the law officers of the Crown in 1817 (2), that 
all the consequences which follow socage tenure by the law of 
England must follow it in Upper Canada, seems to me to state the 
law correctly. If the right of escheat did not necessarily follow 
the introduction of the tenure by the Imperial Act of 1791, our 
own statute of 1792, sect. 3, directing that in all matters of contro- 
versy relative to property, resort should be had to the laws of 
England, must be taken to have introduced it. Our own law then 
has provided for it, and the assertion of the right is not in conflict 



(1) Vol. 2, p. 252. 



(2) Forsyth's Cases and Opinions, p. 164. 



PRIVY COUNCIL. 



97 



with any local law, but in purauance of it, and sanctioned by all 1883 

the weight our approval could give it. It is not an odious prerog- ^^^gj^g^. 

ative, but a natural and essential right in every well regulated Genkkat. 

State. The revenue derived from it forms no part of the personal Meroku. 

property of the Sovereign, biit is received and expended for the Q^y.^Ontario. 

benefit of the common weal. It is no confiscation of any one's 

. , .,.,,.,■, , , J Proudfoot, V.C. 
property, for, from the terms of this bill, it belongs to no one, and 

[131] the defendants are unjustly iu possession of what does not 
belonf to them. There was a great deal said in the opinions o*' 
the Judges in Burcjess v. Wheate (1), so largely quoted by the 
learned counsel, that renders it difficult to determine (as Lord 
Thurlow said in Middleton v. Spker (2),) whether that case was such 
an one as bound only when it occurred speciatim, or afforded a 
general principle. It " was determined upon divided opinions, anc. 
opinions which c mtinue to be divided, of verj' learned men." All 
ihat was really decided in the case was that a trustee having the 
legal estate held it for his own benefit when the beneficiary died 
without heirs. There was a tenant (who had the legal estate) to 
perform the services, and the land could not revert. 

The next question discussed was, if the Crown was entitled, is the 
Attorney-General of Ontario authorized to represent Her Majesty, 
and to appropriate the escheat for the purposes of the Province. 
The learned counsel made an able argument to shew that escheats 
belong to the Consolidated Revenue of the Dominion and not to the 
Local Legislature. That so far as there is any power in Canada of 
appropriating these revenues under Imperial Acts, the Federal 
Parliament alone can deal with them. That the casual revenues of 
the Crown in Ontario (as distinct from territorial) are Federal reven- 
ues applicable to Federal purposes, and payable to the Receiver- 
(leneral of the Dominion. The question has been the subject of 
judicial decision in the Queen's Bench in Quebec, on appeal 
from the Superior Court at Kamouraska, iu a case in which the 
Attorney-General for Quebec was the appellant and the Attorney- 
General for the Dominion was respondent (3), and it was determined 
that the escheat accrued to tlie benefit of the Province of Quebec, 
and not of the Dominion. While not absolutely bound to follow 
that decision, yet considering that it was the unanimous decision of 
[132] judges of great eminence of one of the Confederate Provinces, 

(1) 1 Wm. Bl. 123; 1 Eden, 127. (2) 1 Brown C. 0. 201, 204. 

<3) Atton\fi/-Oenera! of Quebec v. Attorncy-Oemral of the Dominion, 2 Quebec 
Law Rep. 230, pout, p. 100. 
? 



Tfir 



I 



98 



PRIVY COUNCIL. 



AlTOKNEY- 

General 

I'. 

Meucek. 



1888 sitting in apiieal, and construing the same Acts and legislative pro- 

visions now brought into question, it would be unseemly in me to 
venture to give a contrary opinion, and I have therefore concluded 
to follow that decision until it be reversed by some higher tribunal, 

without endeavouring to construe the various Acts that were 
Chy., Ontario, - , ^ 
"' ' refei red to. 

Prou Jfout , v.c. fpjjg jjjgj. ground of demurrer argued was that the mode of pro- 
cedure was essentially wrong, by a mi-sconception of a statement in 
some of the law books, that while there was a tenant there could bo 
no escheat, and that here the defendants were tenants in possession. 
Teniott, however, in this case means one who holds by tenure. The 
case usually put to exemplify it is Litt. s. 390. " If there be lord 
and tenant, and the tenant be disseised, and the disseisor alien to 
another in lee, and the alienee die without issue, and the lord enter 
as in his escheat : in this case the disseisee may enter upon the land, 
because the lord cometh not to the land by descent but by wj'j of 
escheat :" or, in other words, when the tenant in fee has been 
evicted by an intruder who sells, and the purchaser dies without 
heirs, the land does not escheat, because there is a rightful owner, 
a tenant, in existence, who is entitled lo enter and repossess himself 
of his estate ; i. <., the death of a person in possession without title 
and without heirs does not enable tlie lord to take it as an escheat 
to the prejudice of him who has the title. The case quoted from 4 
Rep. 54 b. The Commv)U(ltij of Si^dlers, is to the same efl'ect. In Sir 
George Sands' Case (1), the legal estate was hi Sir George Sands, sub- 
ject to a trust, and the beneficiary was executed for murder, and it 
was held there was no escheat, for tliere was a tenant, i.e., Sir 
George Sands, who had the fee simple in him. The same was the 
decision in Burgess v. IVheate (2), where it was held that where the 
[133] beneficiary died without heirs, the trustee might hold the es- 
tate. He had the legal fee in him, he was a tenant in the proper 
sense of the word, and there could be no escheat. Ihe d. Hayne v. 
Redferu (3), proceeded upon the fact that ofHce had not been found, 
and therefore the title of the plaintiff was not perfect. The cases 
quoted shew nothing more than this, that it the legal estate be 
vested in some one, the death of the person beneficially entitled 
will not cause an escheat. The case of mortgag<ir and mortgagee 
proceeds on the same principle. The legal estate is in the mort- 
gagee, and upon the death of the niortga;^or without heirs there is 

(1) Hardres, 488. (2) 1 Wm. Bl. 123; 1 Eden, 127. (3) 12 East, 9G. 



•'« 



PllIVY COUNCIL. 



99 



1883 



ptate be 

Icntitled 

Lrtgagpe 

le mort- 

there ia 

L 96. 



AirORNEY- 

Gkneral 

)'. 
Mkuceh. 



no escheat, for there is a tenant, the person having the estate. It 
was said that the son here was as much a tenant as the heir of a 
disseisor. Suppose that to be the case, the heir of the disseisor is 
not the tenant who prevents the escheat, but the disseisee. 

If the view contended for bv the defendant be law, the first occu- — - . 

pant, any squatter who nii^^ht chance to get into possession, would __ 

be entitled to liold possession. But tliere is said by Blackstone (1) '"""J^. •^• 
to be only one instance wherein a title to real estate could ever be 
acquired by occupancy, viz., on the do.vth of a grantee for the life of 
another, and even that has been altered since his time (2). 

But a mere possessor without title is not a tenant. He may be 
an occupant, but the cases cited do not refer to such a person. 

Following the decision in Quebec, I must also assume that the R. 
S. O., c. 94, on this subject is not ultra vires, and that the A. J. Act, 
so far as applicable to the mode of procedure, is also not ultra vires. 
By the Escheat Act, R.S.O., c. 94, tlie Attorney-General may bring 
ejectment, and the proceedings maybe similar to those in other actions 
of ejectment. Grants may be made of escheated lands without in- 
[134] quest of office being first found, and the grantee may take pro- 
ceedings in any Court of competent jurisdiction for the recovery of 
them. By tlie A. J. Act, this Court has all the power of a Court of 
law m such actions. It would be strange, therefore, if the grantee 
of the Crown would be in a better position than the Crown itself, 
and might bring a suit here which the Crown could not. But that 
would be reversing the order of aftairs, as the Crown has tlie option 
of a forum where a subject has not. There is no peculiarity in the 
case which would require the intervention of a jury, supposed to be 
the especial guardian of popular rights, and a protection against the 
encroachments of power. There is nothing of the kind to dread. 
The Crown has to establish the fact of the owner's death without 
heirs. When that is done the assertion of the right is not an injury 
to any one having a lawful right, for there ia no such person, and no 
prejudice is done to the people, for it is in their interest the right is 
asserted. 

The Act of Henry was principally a.med at escheats from other 
causes than want of heirs. At that time the military tenures were 
in full force, and the grounds upon which escheats were incurred 
were numerous (3). Refusal to attend Superior Court, denial of 

(1) Vol. 2, p. 258. (2) 1 Vict. c. 26, s. 6 ; 1 Wms. on Exors. G48, ed. 1867. 

(3) See Hottoman, de feud, disp., c. 38, and his Lib. Feud, throughout; 

Hume's Hist. I., 462,463. 



'% 

H 



m^ 



100 



PRIVY COUNCIL. 



1883 t.enure, selling without license, etc., etc., and in such cases great 

scope was given for oppression hy the escheators. None such now 
exist, and even the theoretical principle upon which the Act was 
based has ceased to operate. But I need not inquire into that now, 
as the Ontario Act, which 1 assume to be effective, has substituted 

' ■ another mode of procedure. 

Pioudfoot, v.c. J think the demurrer must be overruled with costs. 



ArroKNKY- 

(Tr'.NKItAL 

r 



m 



Jldoments of the Quebec Court of Queen's Bench— Appeal 
SIDE — IN Attorney-General of Quebec v. Attorney- 
General OF THE Dominion of Canada 
(Church v. Blake). 

[Reported 2 Qvehec Law Rep. 236.] 
DoRiON, C. J.: — 

Edward Fraser died at Fraserville, in the Province of Quebec, on 
the 2nd day of February, 1874. He was not married ; he left no 
heirs and no will. Under Article G37 of the Civil Code his estate 
devolved to the Crown. However, sliortly after his death, one 
Damase Caron was appointed curator to his vacant estate, under 
Article 347 of the Code, and took possession of the property. The 
Attorney-General for the Province of Quebec then instituted this 
action to recover from this curator the property composing the 
estate. 

After the return of the action the Attorney-General for the 
Dominion, acting also on behalf of Her Majesty, petitioned to be 
permitted to intervene in the cauae to claim the estate. This peti- 
tion being contested by the plaintiff, the parties were heard, and by 
the judgment of the court below, the Attorney-General for the 
Dominion was declared to be entitled to claim the estate and was 
allowed to intervene. 

The present appeal is from this judgment, and raises the impor- 
t".'.nt (juestion, whether escheats belong to the Dominion or to the 
Province wherein they arise ; for although both parties claim [237] 
'p. I<'ra8er estate on behalf of Her Majesty, they in reality do so on 
■'^.'.Alf and in the interest of their respective governments. In both 
.ances they use the name of Her Majesty, but only as represent- 
ing the public domain, that of the Duminion in one case and that of 
the Province of Quebec in the other. The contestation being thus 
submitted by the partie.s, it is unnecessary to inquire whether they 



V:i* 



PRIVY COUNCIL, 



101 



|impor- 

to the 

m [237] 

80 on 

In both 

resent- 

Ithat of 

Ig thus 

Ir they 



are both right in assuming to proceed as they have done on behalf 
of Her Majesty, and the only question which by the pleadings is 
submitted to us is, whether the Attorney-General for the Dominion 
has shewn any right to this estate, for if he has no right to it he has 
no right to intervene in the cause. The title of the Attorney- 
General for tlie Province of Quebec is not now in question. 

It is unnecessary for the purpose of this case to inquire into the 
origin of this right to escheats. It is sufficient that at the time the 
B. N. A. Act, 18G7, was passed, they belonged to the Crown, as de- 
clared by our Code, or more properly to the government of the late 
Province of Canada, in whose favour Her Majesty had released that 
portion of her revenue arising in the Province, in consideration of 
the Civil List granted to Her Majtsty by the Act 9th Vict., c. 114. 

The right of the late Proviuce of Canada to these escheats being 
undoubted it only remains to ascertain whether it was reserved by 
the Confedex-ation Act to the Provinces of Quebec and Ontario, or 
attributed to the Dominion Government. 

In the distribution of powers made by the Confederation Act 
between the Dominion and the separate Provinces, the Dominion 
Parliament has the control of all matters of a general character 
.aflecting the whole Dominion. The Provincial Legislatures exercise 
their authority over matters aflFecting the inhabitants of their respec- 
tive Provinces only, and among the subjects to which their autho- 
rity extends is the power of legislation as to rights of property and 
civil rights in general (B. N. A. Act, s. 92, sub-s. 13). 

The right to regulate the transmission of property by inheritance 
falls within the powers of the Legislatures of the several Provinces, 
as affecting rights of property and civil rights. For instance, the 
Provincial Legislatures may restrict or extend the degrees of re- 
lationship beyond which parties will cease to inherit ; they may, as 
is the case in France, decree that in default of legitimate heirs the 
estate of the deceased shall descend to his illegitimate offspring, [238] 
or they may order that it shall revert to some educational or charita- 
ble institution, and by their legislation they may materially aflfect 
or destroy altogether the right to escheats. 

Under sect. 102 of the Confederation Act, all the rights and reven- 
ues which the Legishitures of the several Provinces had a right to 
appropriate (except such as are by the Act reserved for the respec- 
tive Provinces, or which are received under the special powers con- 
ferred upon them by the Act) form part of the consolidated revenue 
of Canada ; and by sect. 120, all the rights and revenues reserved to 



1883 
Attornet- 

CtENERAF. 

!•. 

Mkkcek. 

Attorney- 
General 
OF Quebec 

V. 

Attorney- 
Genkkal 

OF the 

Dominion. 

Q.B., Quebec. 

Dorion, C.J. 



102 



PKIVY COUNCir., 



1883 

Attounkv- 
Genkuai. 

V. 

Mekcek. 

Attorxkv- 
Genehai. 

of quebkc 
c. 

Attornky- 
Genekai. 

OF THE 

Dominion. 
Q.B., Quebec, 
iJoriim, C.J. 



'It' 



tlxe Governments or Legislatures of the .'several Provinces, and all 
the rights and revenues received by thoni under the special powers 
conferred upon them form part of the consolidated revenue fund of 
each Province. The property derived from the exercise of the right 
of escheat constituted a revenue which, before confeder.ation, the 
several Province.s had a riglit to appropriati". It would therefore 
belong to the Dominion Government unless specially reserved to the 
Provinces', or unless it came within the category of those rights 
which are received in virtue of the special powers conferred liy the 
Act upon the several Provinces. The only other sections of the Act 
having reference to the distribution of the as.=<ets of the several Pro- 
vinces are sects. 107, 108, 109, 113 and 117, together with schedules 
3 and 4 anntxed to the Act. In none of these do I find that the 
right to escheats is specially reserved to the Provinces, but from 
what I have already said, escheats seem to come within that class of 
revenues which are derived from the exercise of the powers specially 
conferred on the Provincial Legislatures. If these Legislatures have 
the power to enlarge or curtail the extent of this right by extending 
or restricting the range of parties to whom the estate of deceased 
persons may be transmitted, or if they can abolish it altogether, 
then the existence of this right to escheats is subject to the autho- 
rity of the Provincial LegislatU'es, and the revenue derived from it 
is collected in virtue of the powers specially conferred on them by 
the Act, since it depends upon their action whether this source of 
revenue shall be maintained, and to what extent, or whether it 
shall be abolished altogether. There is here no question of prero- 
gative or of sovei-eignty, but a mere cpiestion of interpretation of 
the B. N. A. Act, 1867. 

The Court is unanimous in saying that the Dominion Govern- [239] 
ment has no claim to the estate in dispute, and that the petition of the 
Hon. Edward Blake, as Attorney-General for the Dominion, should 
have been dismissed. The judgment of the Court below is therefore 
reversed. 

[Transhited] 
Tessiek, J. — 

This is a question of escheat. To whom uoes the property revert 
of one who has died without heirs, in the Province of Quebec, where 
he was domiciled, where he died, and where the property is situated ? 
Is it to the Government of the Province of Quebec or to the Govern- 
ment of the Dominion of Canada ? 

In order to apply the laws of escheat, it is well to go back to their 



PRIVV COUNCIL. 



10:l 



IHKH 

ArroKNF.Y- 
Gknkual, 

V. 

Mkiu'kr. 

ATT")KNKY- 

Gknicu.m, 
ok c^lkbeo 



origin. These laws form part of the civil hiw, and escheat is only a 
mode of succession, prescribed for the case of those who leave no 
heirs, or which amounts to the same thing, such heirs only aa dis- 
claim the inheritance ; in such cases, to follow the language of Arti- 
cle 637 of our Civil Code, " the inheritance goes to the Crown," or 
to use the words of Article 401, "such goods belong to the public 
domain," 

It is plain that in our code, and also in our judicial language, there Attoknky- 

, , , 1 ci • XI 11- Gknf.iiai. 

is sometimes a strange abuse of the words tlie (Sovereign, the public qf tmk 

domain, the Crown, Her Majesty the Queen, tlie domain of the Dominion. 

State, as if these words were synonymous. This, however, is not Q.B., (2ufl)fc. 

the case ; and very often the name of Her Majesty is used in widely Tessier, J. 

diflferent senses. 

The right of escheat was and is nothing more than a right of re- 
version, so that property may return to the authority by whom it 
was first granted out of the public domain. Thi.s authority, it is 
allowed, is primarily represented by the Sovereign ; but has the 
Sovereign, with the sanction of the Imperial Parliament, conferred 
this right on others ? It is admitted that rights of escheat belonged 
to Canada before confederation ; so that Her Majesty the Queen and 
the Imperial Parliament had aUeady surrendered these rights to the 
colony ; and the only question is, to which of the two (Governments, 
Federal or Provincial, belongs the revenue accruing from this right 
of escheat? — a question which must be decided by the construction 
of the B. N. A. Act. 

Sect. 102 says : " All duties and revenues over which the [240] 
respeciive Legislatures of Canada, Nova Scotia and New Brunswick, 
before and at the Union had and have power of appropriation, except 
such portions thereof as are by this Act reserved to the respective 
Legislatures of the Provinces, or are raised by them in accordance 
with the special powers conferred on them by this Act, shall form 
one Consolidated Revenue Fund, to be appropriated for the public 
service of Canada." 

Now in the foregoing clause we have an excoption, and is not 
the revenue derived from escho.it among those included in that 
exception, viz , amoug " such portions thereof as are reserved to the 
respective Legislatures of the Provinces, or are raised by them in 
accordance with the special powers conferred on them by this Act ?" 
It seems to me that this exception is thoroughly supported by sects. 
92, 109 and 117. Sect. 92 is headed, "Exclusive Powers of Provin- 
cial Legislatures," and among these exclusive powers it is enacted, 



104 



PRIVY COUNCIL. 



1883 

Attorney- 
(Iknkbal 

r. 
Mkrcek. 

Attornkt- 

Genkral 

op qckbeo 

V. 

Attornet- 

General 

OP the 

Dominion. 

(^B., Quebec, 
Tessier, .1. 



:l 



that in each Province tbe L' giulature may exclusively make laws 
ill relation to " Property ami Civil Rights in the Province " (sub- 
sect. 13), anil " The administration of justice in the province, in- 
cluding tlie constitution, maintenance and organization of Provincial 
Courts, both of civil and criminal jurisdiction " (sub-sect. 14). The 
law of escheat is only a rule of civil law ; and the Legislature of 
Quebec has exclusive power to ra>tke laws in regard to the degree 
and mode of succession, so that there would be nothing to prevent 
it from passing an Act to extend the right of succession to ille- 
gitimate children or relatives, or even to such institutions as may 
undertake the bringing up of illegitimate children. 

This law of escheat has been handed down to us by Article 167 
of the Coutume de Paris, which reads as follows : " When the owner 
and occupier of an estate depirts this life without h irs, the High 
Justiciary within whos« jurisdiction the estate is situated can lawfully 
enter and hold such vacant and unoccupied es-tates." 

If this right of escheat is considered an incident of the right of 
the supreme administration of justice (de la haute justice), sect. 92 
has given exclusively the administration of justice to the Provinces, 
and the revenue accruing from, this right of escheat would go witli it. 

If, on the other hand, the right of escheat is considered to be 
an incident of territorial revenue, sects. 109 and 117 give both in 
detail and generally the powers of the Provincial Legislatures over 
the public lands and over all the accessory and incidental rev- [241] 
enues derived therefrom. 

Sect. 109 says, "All lauds, mines, mmerala and royalties belong- 
ing to the several Provinces of Canada, Nova Scotia and New 
Brunswick, at the Union, and all sums then due or payable for 
such lands, mines, minerals or royalties, shall belong to the several 
Provinces," &c. 

And sect. 117, stating this power generally, adds, " The several 
Provinces shall retain all their respective public property not other- 
wise disposed of in this Act, subject to the right of Canada to 
assume any lands or public property required for fortifications or 
for the defence of the country." 

This division of powers has au application to various ither 
subjects. For instance, goods confiscated by force of the customa 
laws belong to the Crown, to the Sovereign, that is to say, to the 
Federal Government, which has the control of the subject ; but 
unclaimed stolen goods, sold by order of the Court, belong like wise 
to the Crown or to the Sovereign, that is to say, to the Local 



PRIVY COUNCIL. 



105 



Goveniinent, and tho proceeds of siicli sales are nut returned to 
the Ft'deral exchetiuer. Lands gained fionx the sea by accretion 
or islands arising in waters within the boundaries of the Provinces 
also belong to the separate Provinces. 

It is vain, therefore, to argue on the ground that it is the Gov- 
ernor-General and not the Lieutenant-Governor who i.«i the Queen's 
representative. This is true in regard to the special attributes of 
royalty which Her Majesty can delegate and confer by and in virtue 
of her royal prerogative and instructions ; but it is not true in 
regard to those matters over which Her Majesty tho Queen has 
no longer any direct power, such as the public lands and the rights 
of property, and civil rights in each Province. The name of Her 
Majesty can be used in the administration of justice and to enforce 
the rights ol property of the Provincial government, because this 
is a pa- 1 of the sovereign authority confe-red on the Provincial 
governments, .and which they have tlio right to exercise in the name 
of Her Majesty. If the Provincial government, or its officers, or 
the courts, were seen to drop the name of Her Majesty even in 
civil actions brought by the Local government, exception might be 
taken to this course, which, tbougli perhaps more correct in fact, 
might be held to imply an independence which does not belong [242] 
to our Provincial governments any more than to the Federal 
government. 

It is said that the Lieutenant-Govenior (loes not represent Her 
Majesty in tho same way as does the Goveru' r-Genera). This is 
true in a general sense, but not in regard to the special attributes 
given to the Lieutenant-Governor by the Imperial Act. In these 
he is as truly the representative of the Sovereign as is the Gover- 
nor-General in those which belong to him ; otherwise Legislative 
Councillors would be i)ers(m8 of more importance and nearer 
royalty than the Lieutenant-Governor, because sect. 72 says they 
shall " be appointed by the Lieutenant-Governor, in the Queen's 
name," and those so appointed would find themselves above the 
power which in reality selects them. This would be a curious 
anomaly. 

In the preamble of the Act of confederation it is declared, that 
the Provinces have expressed their desire to be federally united. 
This su])poses a federation of powers, a division of the powers 
among the different Provinces, and a reservation of certain rights 
to each Province of the confederation, in contrast with a legisla- 
tive union in which all powers are concentrated in one Legislature 



ArXORNKT- 

(iKNERAI. 

V, 

Mkuoer. 

Attobnet- 

Gknehal 

OK (Quebec 

V. 

Attornky- 
Geneual 

OF THE 

Dominion. 

C^.B., Quebec. 

Teasier, J. 



i 



w 



106 



PUIVY COUNCIL. 



Arri>i;\EV- 

(Ikncuai. 

r. 

ArnniNKV- 
(Jknkkai, 



lsS3 or Parliiiineiit. It is in virtue of tluH treiity of confodoration that 

uacli Proviiico has preserved its particular rijjhts, amongst whicli 
are to be found the exdnsivo rigiit to the public domain and the 
domain of the State in each Province ; and among the incidents 
of the public domain is to bo found the right of escheat, which 
is subject to the judicial, legislative and executive control of the 
OK <^i i.nK(; PiDvinco of Quebec. I am therefore of opinion that in the present 
Attounky- instance, the property belonging to the vacant succession of 
ok^thk' ^^^^ ^"-^^ Edward Frast-r, Esquire, whether real (U- personal, situated 
Dominion, in the Province of Quebec, belongs to that Province, which is repre- 
<i.B., (^uehtc. sented in this case by the Attorney-General of the Province, or in 
m ~; T other words, to use a descriiition more dignified though not more 

lc8sier, J. ' ' o in 

correct, by Her Majesty's Attorney-General for the Province of 

Quebec. 

Ramsay, J. 

If the technical (juestion insisted on at the argument were the 
only one in the Cfise, it could scarcely give vise to any difficulty. In 
defining the executive power the B. N. A. Act, sect. 9, declares it 
to vest in the Queen ; and when we como to the legislative 
power in sect. 58, it is declared to be vested in the Queen, the 
Senate and the House of Commons. On the other hand, the execu- 
tive power of the Provinces is declared to be vested in an officer [243] 
called the Lieutenant-Governor, who is appointed by the Governor- 
General (sect. (J9), and the legislative power of the Province of 
Quebec is declared to be vested in the Lieutenant-Governor, the 
Legislative Council and the House of Asseniblj-. This distinction 
is kei)t up and the oflicers of the Pn)vinces are so designated (sects. 
r>3 and 134). 

Then as to the word "Crown,'' used in the Code, its interpreta- 
tion can give rise to no difficultj'. T..(>, Orown means the Sovereign, 
in wIkmu individually is V'. sted all tlie property of the Crown. Of 
course, for the purposes of administraiioii, as the government 
b' came mort^ fully organized, the revenues of the Crown had to be 
a}>piopiiat».'d in dillerent ways, aid -o we have the Privy Purse and 
the Civil List. In lik" mmner wd have the separate purses of the 
ditFt;tent colonies ; and when we hear of t';e colonies claiming the 
escheats as part of their revenue, they are only claiming that such 
portion of the revenue legally vested in the Sovereign shall be 
applied to colonial purposes. 

The question we have therefore to decide is, to which of the two 



I'HIVY COUNCir,. 



107 



[)reta- 
|reign, 
Of 
iment 
to be 
c and 
if the 
the 
such 
LI be 

two 



j,'overniuon!9 have the Queen, Lcnls and CoininouH given eBcheals / 
Tliis quostidn inv.lvos tlio exaniiiiaii"n of sects 102, 100 and 117 
of the 15. N. A. Act. This Act yivcs rise to a .iifhculty of construc- 
tion, wliic'.i iH-rhiips I may .^xagKoiMte but wliidi is woithy of con- 
si'lcratii.n, and lint is the double enumeration which c nstantly 
occurs. It is to bu found iirominently in suets. 91 ami !)2. Its 
incoiivonioiice there did ml escape the observation of the framers 
of the bill, fur they havo terminated sect. 01 by a saving clause (f 
great importimce, wliicli makes sect. 92 subordinate to sect. 91. In 
the sections we havo now to consider we have again the double enu- 
meration, but without the saving clause in favour of either enumer- 
ation. This sect. i02i'ivesto tlieDonunicm "all duties and revenues," 
"except such portions the'cof as are l>y this Act reserved to tlio 
respective Legislatures of tlio Provinces," while sect. 117 gives to tlie 
several Provinces "all their respective public property not other- 
wise disposed of in this Act." What is included in "revenues?" 
What is designated by " public property ?" Is 'he Dominion to have 
all the revenues, and are the Provinces to own nidy the naked [244] 
property / I see no mode of reconciling these two scction.s but by 
referring to sect. 109. There we tind that by property is intended 
" lands, mines, minerals and royalties." Now, what are "Royal- 
ties?" In the largest sense of the word they arc all royal preroga- 
tives. It is evident t'lat the word is not used in that sense, and it 
m\ist be limited. But liow far ? It would be manifestly indefen- 
sible to limit it to the royalties arising from mines of gold and 
silver, and therefore it would seem fair to make it extend to all 
those minor prerogatives of tha Crown which formed part of the 
property of the Crown. This interpretation is open to objection ; 
but it is obvious that the text of sects. 102 anl 117 cannot both be 
maintained in their integrity ; and as they are both general sections, 
and there is no saving clause, the interpretation should prevail 
which is most in accordance with the other sectioiia of the Act. I 
thhik, therefore, that the ajipeal must be maintained, am] the inter- 
vention of the Minister of Justice be rejected. 

Sanborn, J. : — 

This case involves a question between the government of the 
Province of Quebec and the government of the Dominion of Canada. 
Elward Fraser died at Fraserville, in the Province of Quebec, on 
the 2nd day of February, 1874, unmarried, and without heirs, and 
intestate. Under Art. 637, C. C, his succession falls to the Crown. 



ArrouNKY- 
(Jknkual 

V, 

Mkucku. 

Attoiinky- 
Oknkuai. 

OF (^fKllKC 

)'. 
Attounky- 

(iKNKKAI. 
OK THi; 

Dominion. 

t^B., (iu<l).-c. 

Ramsay, .1. 



I 



ii ;| 



108 



PRIVY CO UNCI L. 



h 



1883 

Attokney- 
Gknerai, 

V. 

Mehcer. 

Attoknkv- 

Gbnerai. 

of quebko 

V. 

a.ttorney- 
Grneral 

OP THE 

Dominion. 

Q.B., Quebec, 

Sanborn, J. 



This ia oi.e ol the minor prerogatives of the Crown, which in 
colonies having representative Legislatures b comes subject to local 
legislation (Cb'lty on Prerogatives, p. 27). 

The Sovereign's individual prerogative is aubuidinated to his 
power as exoicised in Parliamtnl-. 

This estate would undoubtedly have fallen into the consolidated 
revenue had it become open before the federation of the Provinces 
(see Con. Stat. Can., r 10, s. 5 ; also c. 16, s. 1). Tho question 
here is, does it belong to the Province of Quebec or the Dominion 
of C^anada ? 

The first thing to be noticed is that this minor prerogative 
came under the control of tho late Province of Canada, by 
virtue of the power conferred on that Province over the subject of 
property and civil rights within the Province. The personal prero- 
gative of the Sovereign was yielded up to the Province, when the 
royal assent was given to the Act 9 Vict., c. 114, which declares 
that a Civil List is accepted by Her Majesty instead of all territorial 
and other revenues at the disposal of the Crown, arising in the [245] 
Province. The salary of the Governor-General and the salaries of the 
Judges which comprised that Civil List have always been paid by 
the colonial governments, .and the royal prerogtatives thus yielded to 
the Province have never been withdrawn. 

Under the 92nd sect., Il3tli sub-sect, of the B. N. A. Act, 18G7, 
the power to legislate over the subject of property and civil rights 
within each Province was given to the Legislature of the Province. 
Under sect. 102 of said Act, it is provided that "all duties and 
revenues, tn-er which the respective Legislatures of Canada, Nova 
Scotia and New Brunswick before and at the Union, had and have 
power ol' a})proi)riation; except such portions thereof as are by this 
Act reserved to the respective Legislatures of the Provinces, or are 
raised by ihcm in accordance with the special powers conferred on 
them by this Act, shall form one Consolidated Revenue Fund, to be 
appropriat* d for the public service of Canada," etc. Escheats, of 
the nature of the one in question, are subject to the control of the 
Provincial Legislatures. It is competent for the Parliament of 
Quebec to establish the Law relating to descents, and it may amend* 
modify or repeal, the article 637 of the Civil Code. It may bo said 
that there is a limit to this power of Piovincial legislation over 
property ; that it cannot enact that property which, by the Imperial 
Act, is given to the Dominion, shall belong to the Province. This 
is true, but the public property given to the Dominion is given in 



PRIVY CO IT N CI ^ 



109 



1807, 
•ights 
■ince. 
I anil 
Nova 
have 
this 
ir are 
!(! on 
;o be 
|ts, o! 
ff the 
lit of 
leiid* 
said 
over 
lerial 
This 
in in 



Attorn K\- 
Gkneual 

V. 

Meboeh. 

Attornky- 

Genebal 

of quebkc 

V. 



express terms (aeci. 108), and specified in the 3rd schedule 1883 

appended to the Act, such as canals, harbour-, etc. Over such 
property the Provincial Legislature has no power to legislate, but 
as liaving the power to legislate concerning j roperty, that is, private 
property and civil rights, within the Province. The right to deter- 
mine to whom the property of a person dying intestate without heirs 
shall go is of the same nature as the law of descent, in fact it is a 
pavt of the law of descent vvhic!), I presume, no one doubts pertains Attobnkv- 
to the jurisdiction of the Provincial Legislatures. Escheats pro op'^thk'^ 
defectu sanguinis only go to the Crown with the same title as the Dominion. 
person leaving them had. 4 Kent's Com. 427 ; Re Capt. Gordon, q.b., Quebec. 
Foster's Crown Law, p. 95. This proves that the law governing „ 7~~ j 

descents governs this subject. By sect. 100 of the same Act, it is 

declared that "all lands, mines, minerals and royalties- belonging 
to the several Provinces of Canada, Nova Scotia and New Srunswick, 
at the Union, and all sums then due or payable for such lands, [246] 
mines, minerals or royalties, shall belong to the several Provinces 
(if Ontario, Quebec, Nova Scotia and New Brunswick, in which the 
same are situate or arise." This covers all reversions as well as ex- 
isting lands, miues, minerals and royalties. Escheats of the nature 
of the one in question are royalties. See Brown's Law Dictionary, 
p. 317, where he defines royalties to be rights and prengatives of 
the King (1 Blackstone, 241). 

Li the case of Dijke v. Walfard, decided in the Privy Council (1), 
it was held that jura regalia include personal effects of a bastard 
dying intestate, and go to the King. It may h't said that the word 
royalties in this section is used in a more ret;', rioted sense, and by 
it are intended rents or dues payable fo ■ the rigi:t of mining for the 
precious metals. I see no restrn tion ii it, particularly as the same 
reason that would give a class of royal pirquisites to the Province 
where they arise would give all, and il 's iuore reasonable to inter- 
pret the word in its primary than in its secondary and limited 
sense, which is rather a meaning given to these royal rents by 
miners, than the true sense of the word. 

Li connection with the reasoning before adopte(' sect. 117 has 
force which says; "The several Provinces shall retain all their 
respective public property not otherwise disposed of in this Act, 
subject to the right of Canada to assume any L-nds o»- public 
property required for fortifications or for the deftiice of the 



*1I 



(1) 5 Moore P. C. 434. 





- 

■' f i 

1; 



I.' ill 



i : 



-i 



110 



PRIVY COUNCIL. 



1883 
ArrouNEY- 

GKN'KllAt, 

c. 
Mkiicer. 

Atiukney- 

(iKNERAL 
(IK <iUEBEC 

V. 

Attorney- 

(iKNERAL 
OK THE 

Dominion. 

(^B., Quebec 

Sanborn, J. 



couTitry." This in connection with sect. 108 and schedule 3, shews 
what sort of public property is given to the Dominion and for what 
purposes. 

For these reasons the Coui't considers that the estate of Fraser, 
if subject to escheat, falls to the Province of Quebec. There 
is every reason why it should be so ; these escheats are of feudal 
origin, and the land reverted to the feudal lord or to the Crown ; 
and, as Broom in his Legal Maxims, p. 317, expresses it, *' This is 
in accordance with the spirit of the ancient feudal doctrine expressed 
in the maxim, Quod nuUiua est, est domini regis." All power which 
, might at any time have existed in the seignior or sovereign over 
lands or reversions of lands is now vested in the Province where 
they are situated. This points to the reversion in case of lands. 
As respects mcn'eables it is reasonable that the same result should 
be. It harmonizes with the jiurposcs and objects of the law as 
[247] indicated by the Act creating the two jurisdictions. The 
general powers and revenues and public proj)crty of the Do- 
minion bear much the same relation to those of the Provinces 
that the United States bear to th'> several States, and it has never 
been pretended that escheats pro dofeclu sanguinis became the pro- 
perty of tlie United States. Tlie reversion, as well in personal as 
real estate, has been always given to the State within which the 
escheat arises. This is assumed as law in the case of Cross v. Dt- 
F((//e in the Supreme Court of the United States (1). It will be 
seen that the same reasoning has led to this conclusion as has been 
'ilopted in this case. Cooley on Constitutional Limitations, p. 525, 
speaking of eminent domain, says : " Under the peculiar Ameii 'an 
system, the protection and regulation of private rights, privileges 
and immunities in general, properly pertain to the State govern- 
ments, and th(tse g(n'ernments ai"e expected to make piC"'«ion for 
those conveniences and necessities which are usually provided for 
their citizens through the exercise of eminent domain, the right 
itself, it would seem, must pertain to those governments also, 
rather than to the government of the nation, and such has been the 
conclusion of the authorities." 

The Court determines this (juestion as one between the Province 
and the Dominion, although it is somewhat curiously presented, 
one Attorney-General claiming on behalf of the Queen against 
anotlier Attorney-General claiming on belialf of the Queen. We 



(1) 1 Wallace 1. 



PRIVY COJNCIL. 



Ill 



be 
been 
j26, 

an 
eges 
vern- 

for 

for 
light 
also, 

the 



We 



must understand tliis as a claim for the respective governments, and 
we must understand by the Queen what Art. 637 of the Code means 
by the Crown, not the Queen or the Crown, but one or other of the 
governments, which we decide to be that ot the Province. 

In doing this, we do not determine and do not Kud it necessary io 
determine which government has tlie right to act for the Queen, or 
whether both have. It is a question as to distribution of i ights and 
privileges by the B. N. A. Act of 1807, and from careful study of 
that Act, we think this minor prerogative belongs to the Province 
where it arises. Hence the intervention of tne Attorney-General" 
of the Duminiou of Canada must be dismissed. 

[The formal judfjment ix as folhirs.] 

Tlie Court of our Lady tlie Queen, now here, having heard the 
appellant and respondent, by their counsel respectively, examined 
as well the record and proceedings had in the Court below, as the 
[248] reasons of appeal filed l)y the appellant and the answer thereto, 
and mature <leliberations on the whole being had, considering that by 
the admissions of the parties to the issue raised upon the interven- 
tion tiled by the honourable Attorney-General for the Dominion of 
Canada, acting in this behalf for Her Majesty the Queen, it appears 
that the late Edward Fraser, whose estate is claimed by the Honour- 
able Attorney-General tor the Province of Quebec, acting also in this 
behalf for Her Majesty the Queen, died at Eiviere du Loup, in the 
Province of Quebec, about the second day of Febraarj^, 1874, with- 
out heirs and intestate, and according to the pretensions of both 
parties, he left an estate which h:ith escheated to the Crown ; 

And considering this is one of the sources of revenue which, as a 
minor prerogative of the Crown, was yielded up to the respective 
Provinces now confederated into the Dominion of Canada, prior to 
the union of the Provinces of Canada, Nova Scotia and New Bruns- 
wick, and that such escheats prior to said union formed part of the 
revenues of tiie respective Provinces where they arose ; 

And C(msidering that by the B. N. A. Act of 1867, such revenues 
as were subject to the approjtriation of the respective Legislatures 
of Canada, Nova Scotia and New Brunswick, and which are raised 
by the several Provinces since the union, in accordance with the 
special powers conferred upon them by that Act, belong to said 
Provinces ; 

Atul considering that as having jurisdiction over the law of descents 
by virtue of its j urisdictiou over property and civil rights in the Pro- 



188S 
^— /— ' 

Attorney- 
Gknekal 

l>. 
Meuc'kk. 

Attouney- 
Genkhai. 

OF Ql'KIiKC 

V. 

Attounky- 
Geneual 

OP THE 

Dominion. 

(^B., Quebec. 

Sanborn, J. 



fr*""-" 



112 



PRIVY COUNCIL. 



1883 

Attoknkt- 
General 

V. 

Mekcer, 

Attorney- 
General 
OK (Quebec 

V. 

Attorn KT- 

Genebal 

OF the 

Dominion. 

ii.li., Quebec 



vince under said Act, the Legislature of the Province of Quebec is 
invested with power to appropriate tliis casual revenue to itself ; 

And considering that amongst other things, it is declared by the 
said B. N. A. Act, ol' 1867, that all royalties belonging to the several 
Provinces of Canada, Nova Scotia and New Brunswick, at the Union, 
shall belong to the several Provinces of Ontario, Quebec, Nova Scotia 
"and New Brunswick, in which the same are situate or arise, and that 
escheats, such as the one in tinestion, are royalties ; 

And considering that said estate is composed of real as well as 
personal prope^^ty, and that all territorial Crown rights and privi" 
leges possessed by the la*f^ Provinces of Canada, Nova Scotia and [249] 
New Brunswick, before . le nnion thereof into the Dominion of 
Canada, have been, at the , uuii, given to the several Provinces of 
Ontario, Quebec, Nova Scotia *' l New Brunswick, and the Uw of 
escheat, by reason of want of heirs, is of feudal origin, and cognate 
with the law of tenures ; 

And considering that by the general tenor of the Act of Union, 
and the division of assets and revenues, it is manifest that a casual 
local revenue, like the one in question, was intended to be left to 
the local Province ; 

And therefore, considering that there is error in the judgment 
rendered in this cause, in the Superior Court, at Kamouraska, on 
the twenty-ninth day of January, 1876, and now in appeal, in main- 
taining the intervention of the honourable Attorney-General for the 
Dominion of Canada, claiming said estate of the said late Edward 
Fraser, as belonging to the Dominion of Canada and not the Pro- 
vince of Quebec, doth reverse the said judgment, and proceeding to 
render the judgment which tlie Court below ought to have rendered, 
doth maintain the appeal of the Attorney-General for the Province 
of Quebec, in this cause, and doth reject the petition of intervention 
of said Attornev-General for the Dominion of Canada. 



Judgment in Superior Court. 

[Reported 1 Qvsbec Law Rep. , 1 77. ] 

\Tra)islated.'] 
Taschereau, J. : — 

The question for tlecision in the present case is : Do rights of 
escheat, for want of heirs and the revenues arising therefrom, belong 
under our Constitution to the Federal Government or to the Pro. 
vincial Goveinments ? 



piiivY couNC'ir>. 



113 



Attorney- 
Genehal 

V. 

Mercer. 

Attorney- 
General 
OF Quebec 

V. 

Attorney- 
General 
OF the 
Dominion. 

Sup. C, 
Quebec. 



It is plain that the decision which I have to give on tliis ptant is 1883 

little more than a matter of form, and that a final decision to be 
binding throughout the Dominion, must come from the Supi'eme 
Court or the Privy Council. However, I must treat this question 
and decide it as any other question raised before me. 

Thougli I may regret that the two governments who arc parties 
to this litigation have not thought themselves able to depart from 
the usual course, but have come to a Coxirt of the first instance, yet 
I certainly cannot complain of the labour which the case has re- 
quired ; three pages of writing make up the record, and the decision 
of the question seems to me easy. When the deceased leaves no 
relatives within the degrees of succession, his property belongs to the 
surviving husband or wife, and in default of such survivor the sue- Taschereau, J. 
cession est acquise au souverain. The succession falls to the Crown, 
the English version says. Such is our law as contained in articles 
63G and 637 of the Civil Code. 

Such was the law of old France on the point, such is also the law 
in England where,moreover,escheat3 propter defectum sanguinis, be- 
ng to the Crown. 

It seems to me then usele.-s to enquire if this part of the law of 
England as to the rights of the Crown, was imposed on us by the 
conquest (see contra Attorney-Oen. v. Black (1), as to minor 
jirerogatives). 

It seems to me also unnecessary to refer to the feudal law, [1 80] 
and to speak of the lord of the manor, or the lords high justiciaries 
and their rights to escheated estates. 

For us the lord of the manor, the high justiciary, is the Sovereign ; 
and to the Sovereign alone do these successions belong. In what 
light do these successions belong to the Crown? what is the nature 
of these rights of escheat from failure of lawful issue 1 the answer 
seems to me easy. These rights are appanages of the Crown, attri- 
butes of sovereignty, forming part of the Sovereign's prerogatives 
In England as in France these are minor prerogatives, minora regalia. 
But tor the purposes of the present question, there is no difference 
between these and the major prerogatives, majora regalia (Domat dr. 
civ. des successions, liv. I. tit. 1. sec. 13 ; Domat. dr. public, liv. I. 
lit. 6, sec. 3 ; Ferriere diet. v. regals. roy ; Merlin, Rep. v. butard ; 
Ancien Denisart, v. desherenco, r«Jga'es ; Lebret de la Souverainte 
liv. 3, ch. 12 ; Bacquet, dr. de Batardiso p. 120 ; Bacquet, dr. de 



(1) Stuart's Rep. p. 324. 



Wr 



114 



PRIVY COUNCIL. 



\V\ I 



1883 

ArroiiNEY- 
Genkual 

V. 

Meucer. 

Attoknk.y- 

Gknekal 

of qukhkc 

V. 

Attorn EY- 
Genkkal 

OK THE 
UOMINION. 

Sup. C, 
(Quebec. 

Taschereau, J. 



desherencc, p. 15G ; 1 Blackslone, book 1, ch. 7 and 8 ; 2 Blackstone^ 
book 2, ch. 15 ; 2 Steph< n's Comnieut, 528, 550 ; Chaluivr's Colonial 
Opitjions, p. 142; Cliity on Prerogatives; Wharton's Law Lexi- 
con V. escheat ; Bacon's Abridg, v. prerogative, pp. 48G, 495, 580 ; At- 
torneij-Gcnend v. Kohhr (1) ; Weymouth v. Niujcnt (2) ; Ju re Bate- 
maiis Trust (3). 

I have said these riglits belong to the Sovereign. Now, under 
our constitution, tlie sovereignty is at Ottawa. It is only there that 
Her Maj(sty is directly represented. It is only in relation to the 
Dominion that the 9tli sect, of the B. N. A. Act says ; "The Execu- 
tive Government and authority of and over Canada is hereby 
declared to continue and be vested in the Queen. " And when it 
is a question of the legislative power, it is of the Federal Parlia- 
ment only, and in ro sense of the Provincial Legislature, that the 
Queen forms; a pi*: "There shall be one Parliament for Canada, 
consisting of the Queen, an Upper House styled the Senate, and 
the House >f Commons," says sect. 17 of the Act. This is in refer- 
ence to the Fedeiu. Faviuunent. Now, are the Provincial Legisla- 
tures composed of the Queen and one or two Houses ? By no 
means. " There shall be a Legislature for Outario, consisting of 
the LknietnuU-Gorenior and of (me House"; sect. 69. " There shall 
be a Legislature for Quebec, consisting of the Lieutenant-Governor 
and of two Houses"; sect. 71. 

For the Parliament of the Dominion, the Queen, and two Houses ; 
for the Legislature of Quebec, the Lieutenant-Governor and two 
Ilnuses. 

The Lieutenant-Governors in each Province sometimes act for [181] 
and in the name of Her Majesty, in those exceptional cases where 
the power is given by the B. N. A. Act. But the Governor-Gen- 
eral alone is the direct representative of Her Majesty in and for 
the whole Dominion, and t > him alone, as such representative, is 
entrusted the exercise of the royal prerogatives, within the limils 
fixed by the constitution (and this constitution for the Dominion 
is partly written and partly unwiitten), either resulting from our 
dependence on England, or still further prescribed by the special 
instructions which Her Majesty is pleased to give him. There is 
only one sovereignty for the whole Dominion, and this ";Overeignty 
resides in the federal executive power. 

Before confederation, each of the Provinces was invested with 



(1) 9 H. L. C. 654. (2) 6 B. & S. 22. (3) L. R. 15 Eq. 355. 



PRIVV COUNCIL. 



115 



kckatone, 
Colonial 
iw Lexi- 
580 ; At- 
i re Bate- 

iw, under 
here that 
3n to the 
a Execu- 
8 hereby 
d when it 
1,1 Parlia- 
, that the 
r Canada, 
mate, and 
3 in refer - 
,1 Legisla- 
? By no 
isistiug of 
'here shall 
-Governor 

Houses ; 
and two 

;t for [181] 
ies where 
Irnor-Gen- 
In and for 
Intative, is 
ihe limits 
iDominioii 
from our 
16 special 
There is 
[>vereignty 

^ted with 
355. 



this character of sovereignty ; but, in joining tlio federal union, each 
of them made a full surrender to the central government of this 
sovereif^nty, with its ^jrivileges, prerogatives, and attributes, as also 
of the revenues proceeding fran the exercise of said privileges, 
prerogatives, anil attributes. By the B. N. A. Act, 1867, has been 
reconveyed to the separate Provinces by the central power, some 
of these riyhts and revenues, and only from such leconveyance can 
the Provinces derive their right and title (Beg. v. Taylor, 30 U. C- 
Q. B.,p. 191). 

This sovereignty of the federal government is the foundation 
principle of our constitution ; the one which most particularly 
distinguishes it from the constitution of the United States, in which, 
AS we know, the opposite principle prevails. There each of the States 
of the Union is qu.isi sovereign, each of the States has all the 
rights, i)o\vBi'3 and privileges which it has not expressly surren- 
dered to the general government. With us, the general govern- 
ment has all the rights, powers and privileges, all the attributes 
of sovereignty which, by the 15. N. A. Act, have not been expressly 
reserved to the Provincial government. (Debates on Confederation, 
pp. 33,34, 41, 404.) In regard to the prerogative of pardon for 
instance : this prerogative, by the resolutions adopted by the Cana- 
dian Parliament, was given to the Lieutenant-Governors in each 
Province. But, as I think very wisely, the Imperial Parliament 
wished to leave this prerogative to the Governoi'-General, to the 
federal executive power. Now, is it said iu the Act, ' ' The prerogative 
uf pardon shall belong to the Governor-GeneraU" Not at all. But 
the clause was struck out, which, by way of an exception, gave this 
privilege to the provincial executives, and so by the very silence 
of tlie statute on this prerogative, it as well as others not expressly 
reconveyed, remains with the executive power of the Dominion. 

It is the same with the right of escheat. As the Act has not [182] 
specially reserved it to the Provinces and the local authorities, it 
belongs to the central power. Hence, if the right, the prerogative, be- 
longs to the central power, it is plain that the resulting revenue must 
belong to it also. Under our constitutional government, in England 
as in Canada, the Sovereign surrenders to the people all its hered- 
itary patrimony as Sovereign, and all the revenues attached to th& 
Crown, and receives in exchange from its subjects a civil iist voted by 
Pari lament, (1& 2 Vict. c. 2. Imp.) There revenues are united to what 
is called the consolidated fund, of which they form a part. Upon this 
fund the Parliament, on behalf of the people, charges all the publia 



1883 
Attopnky- 

(iKNKRAL 

V. 

Meuckr. 



Attokney- 

Gknkual 

of Quebec 

V. 

Attouney- 

Gen'ekal 

ok the 

Dominion. 



Sup. C, 
Quebec. 

Taschereau, J. 



-Jj 



I 

I 



If 



v^ 



116 



PRIVY COUNCIL. 



1883 

Attohney- 
Geneual 

V. 

Mercer. 

Attoknev- 
Genkual 

OK QlEISEC 
V. 

Attounet- 
General 

OK THE 

Dominion. 

Sup. C, 
Quebec. 

Taschereau, J, 



1 

1' i 

; 


1 
1 


r ■ 
i ^ 
i 1 


1 ' t 



expenses for which the Sovereign ia no longer liable. (Wharton's 
Law Lexicon, V. Queen & Civil List ; 1 May's Const. Hist. p. 186 
ef scr/; 1 Todd's Par. Gov. p. 167.) 

But the civil list properly so callt-d is the sum voted to the 
Sovereign personally for hia own use and that of the royal family, 
and the royal household. The local Legislatures strictly .speaking do 
not vote, and are not called upon to vote, a civil list, as was said at 
the argument by the learned counsel for Quebec. Here the civil 
list is regulated and established with the changes which the Act 
itself allowed to be made therein by Con. Stat. Canada, c 10, 
s. 2, as follows : " There shall be payable in every year to Her 
Majesty, her heirs and successors, out of the Consolidated Revenue 
Fund of this Province, a sum not exceeding £47,988, 15s. fid., for 
defraying the expense of the several services and purposes named in 
the following schedule A." 

This schedule A comprises the aalary of the Governor-General. 
And indeed atrittly speaking, so far as we are concerned, the whole 
civil list consists in the salary of the Governor-General, payable by 
the Parliament of the Dominion, and charged on the Federal Con- 
solidated Fund by sect. 102 of the B. N. A. Act, as now fixed by 
sect. 105 of this Act, and our own Act, 32-33 Vict. c. 74. 

And in consideration of the sums fixed for the salary of the 
Governor-General, and of the other charges on the civil list created 
by the said Con. Stat. Canada, c. 10, sect. 5 of that Act provides : 
" During the time for which the sums mentioned in the said schedule 
are severally payable, the same shall be accepted and taken by Her 
Majesty, by way of civil list, instead of all territorial and other reve- 
nues at the disposal of the Crown, arising in this Province," . . 
and the Act directs that these revenues shall form part of the Con- 
[183] solidated Fund. Now among the royal revenues thus sur- 
rendered to the former Province of Canada, are certainly included 
estates accruing to Her Majesty by right of escheat ; and these 
estates fall into the Consolidated Fund, and become subject to the 
disjiosal of the said former Province of Canada. 

Now by the B. N. A. Act, aU rights and revenues which before 
the Union belonged to the Province of Canada, now belong to the 
federal government, and form part of the Consolidated Fund of the 
Dominion. There ia only one exception as to rights and revenues 
pre-existing : that of the rights and revenues expressly reserved by 
the Act itself to the Provincial Legislatures. Now it is plain, as I 



PRIVY COUNCIL. 



117 



have already said, that tliis reservation has not been made as to 
rights of encheat and the revenues derived therefrom. 

*^ All duties and revemtes over whicli the respective LegialaturfS 
of Canathi, Nova Scotia and New Brunswick before and at the 
Union luid and have power of appropriation, except such portions 
thereof (IS are by this Act reserved to the resjjective Legislatures of the 
Provinces, or are raised by them in accordance with the special 
powers conlerred on them by this Act shall form one Consolidated 
Revenue Fund, to be appropriated for the public service of Canada, 
in the manner and subject to the charges in this Act provided." 
Sect. 102. 

As to the Provinces : " Such portions of the duties and revenues 
over which the respective Legislatures of Canada, Nova Scotia and 
New Brunswick had before the Union power of appropriation as are 
bij this Act reserved to the respective governmenfs or Legislatures of the 
Provinces, and all duties and revenues raised by them in accordance 
with the special powers conferred upon them by this Act, shall in 
each Province form one Ct)nsolidated Revenue Fund, to be appro- 
priated for the public service of the Province." Sect. 126. To the Con- 
solidated Fund of the Dominion belong all the rights and revenues 
which are not expres.sly given to the Pjovinces. To the Consolidated 
Fund of the Provinces, nothing which is not expressly given them. 

Edward Fraser died intestate in the Province of Quebec without 
heirs or wife him surviving. The Government of Quebec claims 
the estate from the curator, the Government of the Dominion, claims 
that this estate reverts to it, and asks to be allowed to intervene in 
the suit to oppose the claim of the Government of Quebec. This 
right to intervene is opposed by the Government of Quebec, which 
denies the claims of the Government of the Dominion. 

For the foregoing reasons I pronounce in favour of the Govern- 
ment of the Dominion. 



1883 

Attohnet- 
Genkral 

I'. 
Meuckr. 

Attorney- 
General 

OF t^UEBKC 
V. 

Attornky- 
Geneual 

OF THE 

Dominion. 

Sup. C, 
Quebec. 

Taschereau, J. 



I si 



TTT 



118 



PRIVY COUNCIL. 



PRIVY COUNCIL. 



J. c* 

1883 

Nov. f>, '/; 
Dec. 1. 



The Colonial Building and Invest- 
ment Association 



I Defe 



'endanta; 



AND 



The Attorney-General of Quebec .... Plaintiff. 

On appeal from the Court of Queen's Bench for the Province of Quebec. 

[Reported 9 App. Cas. 157.] 

B. N. A. Act, 18G7, ss. 91, 92—37 Vict. c. 103, D. —Pmvcrs 
of Dominion Parliament. 

Held, That Canadian Act, 37 Vict. c. 103, which created a corpora- 
tion with power to cany on certain definite kinds of business 
wiihin the Dominion, was within the legislative comjietence of 
the Dominion Parliameut. The fact that the corjjoratiou chose 
to confine the exercise of its powers to one Province, and to 
local and provincial objects, did not affect its status as a cor- 
poration, or operate to render its original incorporation illegal 
as ultra vires of the said Parliametst. 

Held, further, tliat the corporation could not be prohibited gener- 
ally from acting as such within the Province ; nor could it be 
rostiaiued from doing specified acts in violation of the i)rovin- 
cial law upon a petition not directed and adapted to that 
purpose. 

Loranger v. The Colonial Building and ha'estment Association (ante 
vol. 2, p. 275) I'cversed. 

Appeal from a judgment of the Court of Queen's 
Bench (March 24, 188*2) (1) reversing- a judgment of the 
Superior Court (July 9, 1881) in favour of the appellants 

* Prcsejit .—Loun FrrzGEUALD, Sir Baiines Pbacock, Sir Montaqub 
E. Smith, Sir Robert P. Collier, Sir Richard Couch, and Sir Arthur 

HOBHOUBB. 

(1) Post, p. 133. 



PRIVY COUNCIL. 



119 



gener- 
ic! it be 



in the matter of a petition by the respondent for a declara- 
tion that the appellants' association had been and was 
illocallv formed and incorporated, and for an order dia- 
solving the said association, and prohibiting the appellants { "^ 
from acting in future as such corporation. 

The proceedings out of wliich this appeal arose were 
instituted by the Attorney-General for Quebec, under 
Alt. 997 and following articles of the Code of Civil Pro- 
cedure for Lower Cana<la. They were commenced by a 
petition in the nature of an information filed the 1st of 
April, 1881, followed by an answer on the 7th of April, 
1881. The association was incorporated by the Cana- 
[158] dian Act, 37 Vict. c. 103. The pleadings, the Act, 
and the provisions of the Civil Procedure Code on which 
the proceedings were based, sufficiently appear in the 
judgment of their Lordships. 

On the 2-ith of March, 1882, the Court of Queen's 
Bench (Dorion, C. J., Tessier, Cross and Baby, JJ.) delivered 
judgment (Monk, J., dissenting), reversing the judgment 
of the Superior Court, which had dismissed the petition 
and quashed the writ, and instead thereof adjudged and 
declared that the defendant company had and has no 
right to act as a corporation for or in respect of any of 
the operations of buying, leasing, or selling of landed 
pro])erty, buildings and appurtenances thereof ; or the 
purchase of building materials to construct villas, home- 
steads, cottages, or other buildings and premises, or the 
selling or letting of the same ; or the establishment of a 
building or subscription fund for investment or building 
purposes ; or the acting as agents in connection with such 
operations as the aforesaid, or any like aflfairs, or any 
matter of property, or civil rights, or any objects of a 
purely local or provincial nature, in any manner or way 
within the said Province of Quebec ; and prohibited the 
said company irom acting as a corporation within the 



18«3 

Ll)KAN(iKll 

V. 

Colonial 

niNO AND 

vkstmknt 
Association. 

Statkmknt. 



-1 ;;!«!* 









, -M 



120 



PRIVY COUNCIL. 



1883 Province of Quebec for any of the ends or purposes nfore- 
LoKANGKu siiid ; and Vurther condemned the company to pay the 
Colonial plaintiff '^ho costs as well of the Court below as of the 

BUILIUNC AND , 

lNVK.srMKNT appeal. 
Association. 

Statkment. Matthews, Q.C., and Ful/arton, for the appellant, said 
' that the three main questions were, first, whether the 
company was legally incorporated; secondly, whether it 
is entitled to hold lands in Quebec, having regard to the 
local law of mortmain ; thirdly, whether the judgment is 
founded on the petition. As regards the first, see B. N. A. 
Act, 1867, ss. 91, 92; CitizenH Insurance Cowpany v. 
Parsons (1) ; a company like this could not be incorpor- 
ated by any provincial Legislature. As regards the 
second, this trading corporation would not under the old 
French law have come within the definition of main 
morte. The Civil Code of Lower Canada, arts. 364, 366, 
made a difference, see The Chaudiere Gold Mining Com- 
2jany v. Dcsharats (2). There are certain Building Acts 
[lo9] of the provincial Legislature which are said to be 
violated by this company ; but it is not a building asso- 
ciation within the meaning of those Acts. It is admitted 
that the appellant company may not acquire land con- 
trary to the provisions of any local law ; but it is con- 
tended that no such illegal acquisition is shewn, and if 
shewn would not support the |)rayer of the petition. As 
reg^ards the third point, the declaration and prohibition 
pronounced by the Court are not those asked for by the 
petiti(jn. They are not founded on the process before the 
Court, and not relevant to the issues of law and fact 
raised by the pleadings. The provisions of the Procedure 
Code applicable to these proceedings shew that their 
validity and the jurisdiction of the Court therein depend 
upon and are limited by the information and the conclu- 



(1) 7 App. Cas. 9f) ; atUe vol. 1, p. 2G5. (2) L. R. 5 P. C. 277. 



PRIVY COUNCIL. 



121 



sions thereof ; and that the issues to be ti'ied and the proof is«3 

to be adduced are siudlarly limited: see seets. 997, 098 louanokb 

(amended by Quebec Act, 35 Vict. c. 6, s. 21), 999, 1114, coi-onial 
1115. 



Gihbs, Q.C., and Boddam {Girou'ird, Q.C., of the Cana- 
dian Bar, with them), for the respondent, contended that 
tlie appolUint company could do all it wanted provided it 
obtained the consent of the local Legislatures : see Civil 
Code, s. 358. Not having done so its acts are illegal, that 
is, in violation of the local laws. The company is not 
illegally incorporated — its powers are only incapable of 
being exercised at present, this can be remedied. (SiR 
Montague E. Smith : — The Attorney-General was bound 
to lay distinct grounds*; having charged illegal incor- 
puiation, can you convert that into a t<jtally distinct 
charge ?) Reference was made to sects. 4 and 33 of the 
Act under discussion. The words in the petition " with- 
out being legally incorporated or recognised " are sufficient 
to challenge illegality other than that of incorporation : 
see sect. 997 of Civil Code Procedure. (Sir Barnes 
Peacock : — The Court cannot in a proceeding like this 
give an injunction ; it can only do one of two things 
under sect. 1007 and sect. 1008.) Those sections must be 
read with sect. 997. The object of the Act is to create a 
building society for provincial purposes, and those pur- 
poses cannot be effected without the aid of the provincial 
Legislature, and in contravention of the Building Acts of 
the Province. 

[IGO] The counsel for the appellants were not called 
upon to reply. 

The judgment of their Lordships wns delivered by 

Sir Montague E. Smith : — 
This is an appeal from a judgment of the Court of 



Jtl ll.niN'O ANI> 

Invkbtment 
asbociatiok. 



Argument. 



122 



PRIVY COUNCIL. 



ill! 

J!: 

( 

i'i! 



t - 

i 



^ 


i 


1 ' * 

1: 


' i 


ii :! 




lil 


.L .. 



1883 Queen's Bench of the Province of Quebec, reversing a 

LoRANOER judgment of the Superior Court, which dismissed the 

Colonial petition of the Attorney-General of the Province, praying 

In^vestmknt" ^'*^^ ^^ ^^ declared that the appellant company had been 

Association, illegally incorporated, and that it be ordered to be dis- 

JuDGMKNT. solved, and prohibited from acting as a corporation. 

The judgment now appealed from did not grant the 
prayer of the petition, but gave other relief, in the manner 
to be hereafter adverted to. 

The Colonial BuiMing and Investment Association was 
incorporated by an Act of the Parliament of Canada 
(37 Vict. c. 103). 

The preamble states — 

That the persons thereinafter named " owners of real 
estate in the city and di!>trict of Montreal, and elsewhere 
in the Dominion, have petitioned for an Act of Incorpor- 
ation, to establish an association to be called the ' Colonial 
Building and Investment Association,' whereby powers 
may be conferred on the said association for the purpose 
of buying, leasing, or selling landed property, buildings, 
and appurtenances thereof; for the purchase of building 
materials, to construct an improved class of villas, home- 
steads, cottages, and other buildings and premises, and to 
soil or let the same; and for the purpose of establishing 
a building or subscription fund, to which persons may 
subscribe or pay in mon(!y for investment or for building 
purposes, and from which payments may be made for 
said purposes ; and also to act as an agency." 

Sect. 1 incorporates the association. 

Sect. 4 enacts that the association shall have power to 
acquire and hold, by purchase, lease, or other legal title 
any real estate necessar}'^ for the carrying out of its 
undertakings ; to construct and maintain houses or other 
buildings ; to let, sell, convey, and dispose of the said prop- 
erty ; to acquire and use or dispose of every descripti n 



PRIVY COUNCIL. 



123 



for 



[161] of materials for building purposes ; to lend money 188 
on security, by i^iortgage on real estate, or on Dominion or lobanqkr 
Provincial Government securities, or on the stocks of colonial 
chartered baiiks in the Dominion ; and to acquire, hold, ^f^vKSTMENT'* 
and dispose of public securities, stocks, bonds, or deben- Association. 
tures of any corporate bodies, and other defined securities. Judgmknt. 
The clause provides that the association shall sell the 
property so acquired within five years from the date of 
the purchase thereof. 

Sect. 5 enables the association to act as an agency and 
trust company. 

Sect. 1] provides that the chief office of the association 
shall be in the city ul Montreal, and that branch offices or 
agencies may be established in London, England, in New 
York, in the United States of America, and in any city or 
town in the Dominion of Canada, for such purposes as the 
Directors may determine, in accordance with the Act ; and 
that bonds, coupons, dividends, or other payments of the 
association may be made payable at any of the said 
offices or agencies. 

The secretary of the association, the only witness called 
in support of the petition, proved that the association had 
bought lands, erected houses on such lands, and sold them, 
and had also built houses on the lands of others, and lent 
money on real estate. He stated that these operations 
had hitherto been confined to the province of Quebec, 
though effijrts had been made to extend the business of 
the coaqmny to other [)rovinces, and to establish agencies 
in Glasgow and New York, which had failed in con- 
seq'v^ence of the inability of the association to raise sutB- 
cient capital. 

In order to understand the question which ultimately 
became the principal one to be considered in this appeal, 
viz., whether the judgment of the Court of Queen's Bench 
is properly founded upon the Attorney-General's petition, 



HI 
it} 



f\ 



n 



m 



wm 



I f 



II; 



124) 



PRIVY COUNCIL. 



1883 it is necessary to refer to the provisions of the Code of 
LoKANGKR Civil Procedure of Lower Canada on which the proceed- 
CoLONiAL ^^^^ ^re based, the scope and prayer of the petition, and 
^^vKaxMENT^ ^^^^ nature and form of the judgment appealed from. 
Association. The heading of chapter 10, sect. 1, of the Code is, " Of 
Judgment. Corporations illegally formed, or violating or exceeding 
their powers." 

[162] Art. 997 is as follows :— 

" In the following cases, — 

"(1) Whenever any association or number of persona 
acts as a corporation without being legally incorporated 
or recognised ; 

" (2) Whenever any corporation, public body, or board, 
violates any of the provi.sions of the Acts by which it is- 
governed, or becomes liable to a forfeiture of its rights, or 
does or omits to do acts the doing or omission of which 
amounts to a surrender of its corporate rights, privileges, 
and franchises, or exercises any power, franchise, or privi- 
lege which does not belong to it, or is not conferred upon 
it by law, it is the duty of Her Majesty's Attorney- 
General for Lower Canada to prosecute in Her Majesty's 
name such violations of the law whenever he has good 
reason to believe that such facts can be established by 
proof in every case of public general interest, but he is 
not bound to do so in any other case unless sufficient 
security is given to indemnify the Government against all 
costs to be incurred upon such proceeding ; and in such 
case the special information must mention the names of 
the person who has solicited the Attoi-ney- General to tak& 
such legal proceedings, and of the person who has become 
securitv for costs." 

Art. 998 (as amended) reads : — 

" The sununons for that purpose must be preceded by 
the presenting to the Superior Court, or to a judge, of a 
special information containing conclusions adapted to the 



PRIVY COUNCIL. 



125 



nature of the contravention, and supported by an affidavit 1883 
to the satisfaction of the Court or jndge, and the writ of Lorangeb 



summons cannot issue upon such intorniation without the Colonial 

Building and 

Investment 
Association. 



authorization of the Court or judge." 

The material allegations of the petition filed by the 
Attorney-General are the following : — 

" That the ' Colonial Building and Investment Associa- 
tion' for years past have been and still are acting as a 
corporation in the city of Montreal, and elsewdiere, in *he 
Province of Quebec exclusively, and as such, over since 
the date of its existence hereinafter mentioned, have been 
[103] buying, leasing, and selling landed property, build- 
ings, and appurtenances thereto, constructing villas, home- 
steads, cottages, and other buildings, and selling and 
letting the same, and have also been lending money on 
security by mortgage or hypothec on real estate in this 
province, the whole without being legally incorporated or 
recognised. 

" That the operations and business of the said associa- 
tion have been limited to the Province of Quebec, and 
being, moreover, of a merely local or private nature in the 
said province, and having provincial objects affecting pro- 
perty and civil rights in the said province, the said associa- 
tion could not lawfully be incorporated, except by or 
under the authority of the Legislature of the Province of 
Quebec. 

" That the said association was incorporated by the 
Parliament of Canada, in the year 1874, 37 Vict. c. 103, 
and has ever since been in operation under the said Act 
of incorporation which, for reasons above alleged is null 
and void and of no etfect, the said Act of incorporation 
being ultra vires. 

" Wherefore your petitioner prays that a writ of sum- 
mons upon the affidavit hereto annexed be ordered to 
issue in due course of law, and that the said defendants 



Judgment. 



M 



>,i 



"'.41 



126 



PRIVY COUNCIL. 



1883 



Fl ! 



' r 



ill 

r I 



LORANGKR 

II. 
COl.ONIAIi 



Association, 
judgmknt 



t 

i 




1 


i 
. f 


1 
I 


I 



1 ! 



be adjudged and declared to liave been, and to be illegally- 
formed and incorporated, and that the said illegal associa- 
tion may be ordered to be dissolved, and be declared 
^iNVEsraKNt" (lissolved, and finally, that the defendants be prohibited 
from acting in future as such corporation, the whole with 
costs distraits to the undersigned attorneys." 

The petition was verified by affidavit, as required by 
the Code, and thereupon an order for a writ of summons 
against tlie company w o issued by a judge. 

The petition also alleges that it was presented at the 
solicitation of John FJ etcher, a shareholder of the com- 
pany, who had become security for costs. It appears that 
Fletcher was in default in payment of his calls, but in the 
view their Lordships take of the case any further refer- 
ence to this relator becomes immaterial. 

The broad objection taken by the Attorney-General in 
the petition is, that the association vras not legally in- 
corporated, the statute incorporating it being ultra vires 
of the Parliament of the Dominion. 

[1(34] The judgment of the Superior Court, given by Mr. 
Justice Caron, distinctly overruled tliis objection. Mr. 
Justice Tessier is the only Judge of the Court of Queen's 
Bench who affirmed it. Chief Justice Dorion, in a judg- 
ment which received the concurrence of two other judges, 
acknowledged that having regard to the observations of 
this Board in the case of The Citizens' Insurance Com- 
pany of Canada v. Parsons (1), it could not be held that 
the incorporation of the association was beyond the powers 
of the Dominion Pail lament, and illegal ; and the majority 
of the Court gave judgment upon the assumption, as their 
Lordships understand the reasons of the Judges, that the 
association was lawfully incorporated. The conclusion 
of the formal judgment of the Court is as follows : — 

" That ohe said company, respondents, had and have no 

(1) 7 App. Cos. 90 ; ante vol. 1, p. 265. 



PRIVY COUNCIL. 



127 



riglit to act as a corporation for or in respect of any of 1883 
the said operations of buying, leasing, or selling of landed lokanger 
property, buildings, and appurtenances thereof, or the pur- colowt*! 
chase of building materials to construct villas, homesteads, Butloino and- 
cottage-1, or other buildings and premises, or the selling or association. 
letting of the same, or the establishment of a building or Jcdgmekiv 
subscription fund for investment or building purposes, or 
the acting as agents in connection with such operations 
as the aforesaid, or any like affairs, or any matter of prop- 
erty or civil rights, or any objects of a purely local or pro- 
vincial nature, in any manner or way within the said 
Province of Quebec, and doth prohibit the eaid <;ompany, 
respondents, from acting as a corporation within the said 
Province of Quebec for any of the ends or the purposes 
aforesaid." 

Mr. Justice Monk, in a short but clear judgment, dis- ^ 
sented from his colleagues, and agreed with Mi'. Justice 
Caron's judgment. 

Tlieir Lordships cannot doubt that the majority of the 
Court was right in refusing to hold that the association 
was not lawfully incorporated. Although the observations 
of this Board in the Citizens' Insurance Company of 
Canada v. Parsons (1), referred to by the Chief Justice, 
put a hypothetical case by way of illustration only, and 
[1()5] cannot be regarded as a decision on the case there 
supposed their Lordships adhere to the view then enter- 
tained by them as to the respective powers of the Domi- 
nion and Provincial Legislatures in regard to the incor- 
poration of companies. 

It is asserted in the petition, and was argued in the 
Courts below, and at this bar, that inasmuch as the associa- 
tion had confined its operations to the Province of Quebec, 
and its business had been of a local and private nature, it 
followed that its objects were local and provincial, and con- 






• ,h 



(1) 7 App. Cas. 90 ; ante vol. 1, p. 205. 



1 



U'.> 



I! 



' ( 



i\ 



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128 



PRIVY COUNCIL. 



1883 sequently that its incorporation belonged exclusively to 
LoBANQEH ^^G provincial Legislature. But surely the fact that the 
Colonial association has hitherto thought fit to confine the exercise 
BuiLDiNQ^AND q£ jjg pQwcrs to ouc provlucc cannot affect its status or 
AaaooiATioN. capacity as a corporation, if the Act incorporating the asso- 
JuDGMKNT. elation was originally within the legislative power of the 
Dominion Parliament. The company was incorporated 
with powers to carry on its business, consisting of 
various kinds, throughout the Dominion. The Parliament 
of Canada could alone constitute a corporation with these 
powers ; and the fact that the exercise of them has not 
been co-extensive with the grant cannot operate to repeal 
the Act of incorporation, nor warrant the judgment prayed 
for, viz., that the company be declared to be illegally con- 
stituted. 
, It is unnecessary to consider what remedy, if any, could 

be resorted to if the incorporation had been obtained from 
Parliament with a fraudulent object, tor the only evidence 
given in the case discloses no ground for suggesting fraud 
in obtaining the Act. 

Their Lordships therefore think that the Courts in 
Canada were right in holding that it was not competent 
to them to declare, in accordance with the prayer of the 
petition, that the association was illegally incorporated, 
and ousrht to be dissolved. 

There remains the question, which was mainly argued 
at the bar, whether the judgment of the Court of Queen's 
Bench which, shortly stated, declares that the association 
has no right to act as a corporation in respect of its most 
important opfations within the Province of Quebec, and 
prohibiting it from so acting within the province, can be 
sustained. 

It was not disputed by the counsel for the Attorney 
General that, on the assumption that the corporation was 
[16G] duly constituted, the prohibition was too wide, and 



PRIVY COUNCIL. 



120 



ea:braced some matters which might be lawfully done in 
the province, but it was urged that the operations of the 
company contravened the provincial law, at the least, in 
two respects, viz., in dealing in laud, and in acting in con- 
travention of the building Acts of the province. 

It may be granted that, by the law of Quebec, corpora- 
tions cannot acquire or hold lands without the consent of 
the Crown. This law was recognised by this Board, and 
held to apply to foreign corporations in the case of the 
Clmudih^e Oold Mining Company v. Desbarats (1). It 
may also be assumed, for the purpose of this appeal, that 
the power to repeal or modify this law falls within No. 13 
of sect. 92 of the B. N. A. Act, viz., " Property and Civil 
Rights in the Province," and belongs exclusively to the Pro- 
vincial Legislature; so that the Dominion Parliament 
could not confer powers on the company to override it. 
But the powers found in the Act of incorporation are not 
necessarily inconsistent with the provincial law of mort- 
main, which does not absolutely prohibit corporations from 
acquiring or holding lands, but only requires, as a condition 
of their so doing, that they should have the consent of the 
Crown. If that consent be obtained, a corporation does 
not infringe the provincial law of mortmain by acquiring 
and holding lands. What the Act of incorporation has 
done is to create a legal and artificial person with capacity 
to carry on certain kinds of business, which are defined, 
within a detined area, viz., througliout the Dominion. 
Among other things, it has given to the association power 
to deal in land and buildings, but the capacity so given 
otily enables it to acquire and hold lands in any province 
consistently with the laws of that province relating to the 
ac(jiiisition and tenure of land. If the company can so 
acquire and hold it, the Act of incorporation gives it cap- 
acity to do so. 



1883 

LOKANOEB 

V. 

Colonial 
Building and 

Investment 
Association. 

Judgment. 



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(1) L. R. 5 P. C. 277. 



130 



PRIVY COUNCIL. 



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1883 It is said, however, that the company has, in fact, 

LouANGEii violated the law of the province by acquiring and holding 
Colonial ^^'^^^ without having obtained tlie consent of the Crown. 

^im-EsTMENx^ ^^ "^^y^ ^® ^^> ^"^ ^^^^ ^^ ^^^^ ^^^^ ^^^^ made by the petition. 
Aa.sociATioy. Proceedings founded on the alleged violation, by a corpora- 
JuDOMENf. tion, of the mortmain laws, would involve an inquiry open- 
[107]ing questions (some of which were touched upon in tlie 
arguments at the bar) regarding the scope and effect of 
these laws, the fact of the Crown's consent, the nature and 
sufficiency of the evidence of it, the consequences of a 
violation of the laws, and the proper parties to take advan- 
tage of it; questions which are certainly not raised by 
the allegations and conclusions of this petition. 

So with respect to the objections founded on the Acts 
of the Province with regard to building societies. Chief 
Justice Durion appears to be of opinion that, inasmuch 
as the Legislature of the Province had passed Acts relating 
to such societies, and defined and limited their operations, 
the Dominion Parliament was incompetent to incorporate 
the present association, having for one of its objects the 
erection of buihlings throughout the Dominion. Their 
Lordships, at present, fail to see how the existence of these 
Provincial Acts, if competently passed for local objects, 
can interfere with the power of the Dominion Parliament 
to incorpoi'ate the association in question. 

If the association by its operations has really infringed 
the Provincial Building Societies Acts, a proper remedy 
may doubtless be found, adapted to such a violation of 
the provincial law; but, as their Lordsiiips have just 
observed, with reference to the supposed contravention of 
the mortmain Acts, that is not the case made by the 
petition. 

It now become.'^ material to examine more closely' tlian 
has hitherto been done the allegations and conclusions tlie 
petition really contains. The first paragraph, after stating 



fact, 



|frinii;ed 
remedy 
Uion of 
TQ just 
itioii of 
)y the 

ly til an 

)ns the 
stating 



PRIVY COUNCIL. 



181 



that the corporation carried on its operations in Quebec 1883 
exchisively, concludes thus : " the whole without being lokanoeb 
legally incorporated or recognised." Colonial 

The second paragraph avers that the operations of the ^i;^'^^'^^ ^^^ 
company being confined to Quebec, and being of a merely A««ociation. 
local nature, affecting property and civil rights in tlie Judgment. 
province, " could not lawfully be incorporated except by 
the authority of the Legislature of the Province." 

The third paragraph alleges that, for these reasons, 
" the Act of incorporation is null and void, the said Act 
of incorporation being ultra vires." 

The conclusion and prayer based on these allegations 
[1G8] are, that the association be declared to be illegally 
incorporated, be declared dissolved, and prohibited from 
acting in future as a corporation. 

it eems to their Lordships it would be a violation not 
only of the ordinary rules of procedure, but of fair trial, 
to decide this appeal upon a new case which, assuming a 
lawful incorporation, rests on the supposed infringement 
of the laws of the Province by the company in conducting 
its operations. This is not the wrong struck at by the 
petition, but a wrong-doing raising issues of a wholly 
different character to those to which the allegations and 
conclusions of the petition are alone directed and adai)ted. 
It is to be observed that the inquiries made of the com- 
pany's secretary were of a general nature, and mainly 
directed to support the allegation in the petition that the 
company's operations had been limited to the Province of 
Quebec. No investigation of the title to any of the lands 
it held, nor of any j)articular transaction, was gone into 
at the hearing. 

The 998th article of the Code of Civil Procedure re- 
(luires that the summons to be issued " must " be preceded 
by a petition to the Court containing " conclusions 
)ted to the nature of the contravention," to be sup- 



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182 



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1883 ported b}' aa tiffidavit ; and provides that the summons 

LoKANGER cannot he issued upon such information without the 

Colonial authority of a judge. It is quite phiiu that the conchi- 

'investment" ■'^i^"« ^^ t'J'i'^ petition are not adapted to the case now 

A8?<ucLvnoN. i-fjlied on by the Attorney-General ; so that neither the 

JiuuMENT. general principle regulating procedure nor the special 

requirements of the Code allow of its being set up on 

these proceedings. 

It' the company is really holding property in Quebec 
without having complied with the law of that province, 
or is otb.erwise violating the provincial law, there may lie 
found proceedings applicable to such violations; though 
it is not for their Lordships to anticipate them, or to 
indicate their form. 

It should be observed that their Lordships, in the case 
supposed in their judgment in the appeal of the Citizens 
Lisurance Company, in regnrd to corporations created by 
the Dominion Pariia-uent with power to hold land being 
subject to the law of mortmain existing in any province 
in which they sought to acquire it, had not in view the 
[109] special law of any one Province, nor the question 
whether the prohibition was absolute, or only in the 
absence of the Crown's consent. The object was merely 
to point out that a corporation could only exercise its 
powers subject to the law of the province, whatever it 
might be, in this respect. 

It was argued that the judgment of the Court nf 
Queen's Bench might be sustained by the part of the 
prayer which asked that the company "be prohibiteil 
from acting in future as a corporation within the Pro- 
vince of Quebec" for certain purposes. But the pruhihi- 
tion is asked as consequential ui)on the declarations prityed 
for, and when these are refuse<l, there are not only no 
declarations, but no allegations in the petition to sustain 
it. It has been seen that the prohibition contained in the 



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PRIVY COUNCIL. 



133 



d being 



iu(l<'inent of the Court of Queen's Bench is not an injunc- i^'*:^ 
tiou limited to rcstmininij the company from doing sped- Loranhkr 
tied acts in violation of particular laws of the province, colonial 
Imb is a <i;eneral prohibition founded on a declaration '\'|vvistvint" 
introduced by the Court, other than those prayed for, •^>"<"« 'ATLoy. 
that the company has no right to act as a corporation in -Tvim^iknt. 
dealing with lands and buildings, and certain other matters 
within the province. This, declaration, with the prohibi- 
tion founded on it, is obviously too extensive, A prohibi 
tion in these wide and sweeping terms would prohibit the 
company fron\ acquiring or dealing in lands, though it 
hud the Crown's consent, and eoiild only be warranted by 
nlHriningthe invalidity of the Act of incorporation, which 
would be oppor.ed to what has been stated in the previous 
part of this judgment to be their Lordships' view; or at 
least by affirming that the company, in exercising its 
powers in the province, must necessarily violate the pi'o- 
vincial law, which, as already shewn, is not a necessar}' 
consequence. 

In the result, their Lordships will humbly advise Her 
Majesty to reverse the judgment under appeal, and to 
order that the judgment of the Sui)erior Court bo affirmed, 
and that the present appellant's costs of the a|)peal to the 
Court of Queen's Bench in Canada be paid b;y the present 
respondent. The appellant must also have the costs of 
the a|)peal to Her Majesty. 



^1 * 



'Ai 



Judgments in Quebec Court of Queen's Bench (I). 

Monk, J : — 

I regret I cannot concur in the judgment about to be rendered l)y 
tlie Court. I would without hesitation contirui the decisit)u rendered 



(1) [The formiil judgment of the 
C'nurt of Queen's Bench is reported 
ante vol. 2, p. 275. The reasons of 
the judges here given are from the 



Record of Proceedings printed on 
the appeal to the Privy Council, for 
a copy of which the editor is in- 
debted to Mr. Girouard, (^.C] 



I' 
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1H83 by tlio Superior Court. The ground of complaint as sot forth in the 

, ~'~' int'iirniation is "That the operations and business of the said a-ssocia- 

LOUANOER ' 

r. tion havo been limited to the Province of Quebec, and being inore- 

Bciliiing'ani) '*^*^'' "^ a merely local or private nature in the said Province and 

Investment having provincial objects affecting property and civil rights in the 

Association. . , t, V ,, • , • f 1 1 . i .• i, u • 

.. _ Saul Province, the said association could not lawtully be incor- 

Q.B. , Qu ebec, porated except by or under the authority of the Legislature of the 
Monk, J. Province of Quebec." 

It is not pretended that the law as passed by the Dominion Legis- 
lature was or is ultra vires the contention is that the company 
having commenced business in the Province of Quebec by virtue of 
the statute in ({uostion renders the law inoperative, and that the 
association should be dissolved, and to do so this Court must 
declare it to havo been illegally fijrnied and incorporated. Now 
there can be no doubt whatever that the enacting of this law was 
exclusively within tiie powers and juris liction of the Federal Parlia- 
ment. Tins view of the case is not disputed even by this Court, 
but it is ur^ed that because the company has not so far extended 
its operations to tlie full limits of its corporate authority, the Act is 
therefore, they contend, ultra vires and the company should be dis- 
solved. This appears to be a most extraordinary idea. I cannot 
concur in adjuflging that the partial or an incipient comjtliance with 
a statute would authorize this Court in setting it aside ; so long is 
the law stands and is unassailable by Courts of Justice and the cor- 
poration has a It gal existence, we cannot interfere. Tiie Dominitm 
legislature probably foresaw that tli.- important operations of the 
company w-uld Inne to hive a commencement somewhere nnd why 
not in the Province of Quebec, as well as elsewhere i I see no reason 
for such a view of this matter. Should the company wholly fail in 
the futiu'e to fulfil reasonably the obligations imposed on it and 
thereby frustrate the objects of the Legislature, the Federal Parlia- 
ment can and probably would take some action should .siujh .1 011- 
tingcncy arise, but at present it appears to me thi'^ •"' j*not 

interfere. 



!!' 



[Translated.] 
Tessier, J. : — 

A writ of quo warranto, issued at the instance of the Attoi-ney- 
General of the Province of Quebec, addressed to the association who 
are the defendants herein, and who ai*e incorporated by virtue of an 
Act of the Parliament of Canada of 1B74, 37 Vict. c. 103. 



PRIVY COUNCIL. 



135 



Tho allogations are well summed up in the very words of the 1«HH 
Dotitioii wliich alloKt's : "That tho opurations and business of the 
said association have buon limited tt» t!:o Province of Quebec, and v. 

lieing moreover of a merely local or i)vivate nature in tho ."aid Prov- ij|||"|,'ij,--''\'jjn 
iiii'o, the "aid association could U'lt lawfully be incorporated except In'vkhtmknt 

by or under the authority of the legislature of tho 1 rovmce of 

Quebec." Q.B., C^icIk'c. 

Tho conclusions flow necessarily from the premises and are as Tessier, J. 
follows : That tho associati' m be adjudged and declared to have been, 
and to be illegally formed and incorporated, and " that the said 
illigal association may be ordered to bo dissolved and be declared 
dissolved," ami finally that the defenduuts be prohibited from acting 
in future as such corporation, with costs. 

It is alleged in the petition that this Act of incorporation is ultra 
vins of tho Parliament of Canada. 

The association reidied that its Act of incorporation was within the 
juiisdiction of the Parliament of Canada, because it was thereby 
authorized to exercise powers and privileges, and to act and contract 
in all the Provinces of the Confedetation. 

According to the evidence and the admissions it appears that this 
associatii n has limited its operations to the Province of Quebec, but 
that is not the point in issue. The re il question is whether the 
oijcrations which the associaticm is authorised to carry on by virtue 
of its Act of incorporation are among those which are within the 
exclusive jurisdiction and powers of the local Legislature of Quebec. 

Section '.)2 of the confederation Act says that, " in each Province 
the Legislature may exclusively make laws in relation to matters 
coming within the classes of subjects next hereinafter enumerated," 
inter alia. 

No. 10. "Local works and undert.akings." 

No. 13. '* Property and civil rights in the Province." 

No. 16. " Generally all matters of a merely local or private nature 
in the Province." 

Let us now see what are the powers conferred on this association. 

The jn-eamble of the statute indicates the principal object; "To 
buy, lease or sell landed property, buildings and appurtenances. 

Sections 4, 6, 6 and those which follow particularise and formulate 
til ' powers : " to buy, sell, and rent lands and buildings . . . 
to erect and build houses, to acquire and sell l-uildiiig materials 
. . . to own mortgages and securities, to mortgage and lease 
real estate." 



.mi 




136 



PRTVY COUNCIL. 



li 



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1883 By sections 13, 20, 27, 33, 34, 36, 37, 39 and 40 rules of civil 

""""' procedure and rules concerning property and civil rights, and the 

/). form and effects of contracts are established. It is evident that all 

BuiLDiNC! Vnd tli*^8e matters fall within the exclusive jurisdiction of the Legislature 

INVKSTT.F.NT of Quebec. 
Association. 

— . However, the defendants object, that by sect. 11 they have .a ught 

Q.B. , Qu eoec. |.,, egt-iblish branches or agencies in all the towns of Canada, at 

Tessier, J. Loudon also in England, and at New York in the United States of 

America, and that only the Parliament of Canada can confer this 

right. This is a mistake, the Legislature of Quebec can just as well 

create an association or legal person of this kind ; the power conferred 

on this private corporation of establishing an agency at London or 

at New York, belongs to it, n.i it belongs to every individual wliat- 

soever, provided he submits to the laws of the country in wuich he 

establishes that agency. In like manner a corporation created by 

the Lcgii^lature of Quebec, has a right to carry on business at Toronto, 

provided it submits to the laws in force in the Province of Ontario. 

It is necessary, then, to consider two thiiig:^ in the creation of cor- 
porations ; 1st, the privilege of being constituted a corporation 
which power is common to the Federal Parliament and to the Pro- 
vincial Legislatures ; 2ud, the object and nature of the powers of 
the corporation so created. It is at this point that in certain matters 
a division is made between tlie jui'isdiction of the Provincial 
Legislatures and that of the Federal Parliament. 

Ill the case of i> written constitution such as ours, the distribute -n 
of powers is subject to the interpretation of the Courts in order to 
keep the Federal Parliament and the local Legislatures within tlie 
limits of their resi)ective powers. 

Suppose a statute like- the present hc^d been passed by the Legis- 
lature of Quebec, could it be maintained that it was ultra virts ? 
It would bo a retinement to contend that because there is a 
question abuut debentures and interest coupcjiis, the Act is 
witi.iin the powers of the Fi'deral Parliament ; that is not the main 
object of the statute, but only an accessory to the main object, and 
that accessory becomes subject to the general laws of Canada. 

If the statute in ijut-stiou is witliin the competence of the Parlia- 
ment of Canada, one may reflect on the hundreds of statutes of the 
provincial legislatures incorporating companies for Miining phosjih- 
ates, for manufacturing cloth, ootton, shoes, colonisation, land 
imprcjvements, and land comjtaniefi, and say, that provided it is said 
that these companies can have a branch or agency at Toronto and at 



PRIVY COUNCIL. 



137 



Quebec, or at New York and London, they fall under the jurisdiction 1883 

of the Federal Parliament. t '~^ 

Loran(;ek 

Tlie judgments lately delivered by the Privy Council in England v. 

give us rules of interpretation which can be applied in the present Building! and 

case. In Citize-ns Iiis^ira nee Cumpami v. Parsons (1) the Judges of Investment 
~ ., . „ " , , . 1 . Association. 
tho Privy Council said : " Notwithstanding this endeavour to give 

pre-eminence to the Dominion Parliament in cases of a conflict of ^•>_'^"^^'''-'' 

powers, it is obvious that in some cases whero this apparent conflict Tessier, .1 . 

exists, the (Imperial) Legislature could not have intended that the 

pinrers exclmivehj assig ipil to the Provinci.l Legislature should be 

aboorbea in those givt^i to the Dominion Parliament . ... . 

Li these cases it is the duty of the Oiairts, however difficult it 

may be, to ascertain in what degree, and tf) what extent, authority to 

'leiii with matters falling within these classes of subjects exists in 

each Legislature, and to define in the particular case before them 

tlie limits of their respective powers." 

From all this we must conclude that the creation of a corporation 
for objects relating to or exten<ling to property and civil rights falls 
exclusively under the control of the local Legislature, and that to 
remove it therefrom the f)bject of incorporation must be one, so 
to say, of interprovincial law, that is to say, one in which the Federal 
Parliament has the right to establish the rules of civil right and of 
property in all the Provinces in a uniform manner. 

Now in the Province of Quebec, corporations have not the power 
of possessing or mortgaging property, except by a special law, 
ameiiiliiig in that respect the civil laws relating to property. It 
wduld then be an interference with our laws of property, if the Parlia- 
imiit of Canada coukl control, modify or change them as has been 
done by this statute. It is the local Legislature which has this 
exclusive right. 

Wc must then declare, that this statute is ultra vires of the 
Federal Parliament, and that the I'orporation in quedtion is dissolved. 
It still has the power of applying to the local Legislature for the 
purpose of being le-constituted with the necessary corporate powers. 

DoiuoN, C. J. : — 

This ap])eal arises out of proceedings adopted by the .\ttorney- 
(Jeneral of the Province of Quebec, under Article !)!)7 of the ("ude 
of Civil Procedure, to test the ri^ht of the r< spoiident to act a-; an 

(1) 7 App. Gas. 96, 108; ante vol. 1, 205, 272. 



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1883 incorporated building society, and aa svich to acquire and sell real 

, "'^ estate situated within tlio Province. 

LORANGER 

f. By an Act of the Parliament of Canada, passed in the 37th year 

BL^Lnmf'^^^Nn °^ ^er Majesty's Reitjn, c. 103, William Rodden and others were 

Invkstment incorporated undir the name of the Colonial Building and Invest- 

" ment Association, for the jjurpose, as stated in the preamble of the 

dj.B.. (juebec. ^^^^ n ^f buying, leasing, or selling landed property, buildings and 
Dorion, C.J. appurtenances thereof," etc. 

The company is not by its Act of incorporation restricted to curry 
on business in the Province of Quebec, although it would seem from 
several clauses of the Act and from the legal terms used in sections 
4, 34, 35 and the reference in section 36, to the Code of Civil 
Procedure of Lower Canada, that the p.nncipal, if not the sole object 
of the company was to carry on its opei'ations in the Province of 
Quebec, and it has been established in evidence, that since its 
organisation, in 1874, the company has been carrying on business 
exclusively in that Province, where it has purchased rail estate 
to a very large amount. 

Under this state of facts two questions are raised. 

1st. Had the Parliament of Canada the right to incorporate a 
building society to carry on business in the Province of Quebec 
exclusively ? 

2nd. Is the power conferred upon this company to acquire lands 
in the Province of Quebec contrarj' to tlie laws of mortmain in force 
in the Province ? a;id, ii so, Imd the Parliament of Canada any 
authority to except the company respondent from thu operation of 
thi)se laws? 

Before the B. N. A. Act is passed, the organisation of build- 
ing societies was considered as s ) intimately connected with the 
different system of laws in force in each of the two Provinces of 
Upper and Lower Canada, that although under the union which 
then existed, all the laws affecting them were enacted by one and 
the same legislative body, it was found necessarj to have on this 
subject, a separate legislation for each Province. The dispositions 
applicable to Lower Canada were contained in the Lower Canada 
Consolidated Htatutes, c. 60, and those applicjvble to Upper 
Canada, in the Consolidated Statutes of Upper Canada, c. 53. 

Since the union of tlie Provinces under the B. N. A. Act, c. 
69 of the Lower Canada Con8oli<lated Statutes has been twice 
amended and partly repeated by the Legislature of the Province of 
Quebec, first, in 1876, by 39 Vict. c. (51, and secondly, in 1878, by 
41 Vict. c. 20. 



PRIVY COUNCIL. 



isr 



kct, c 
twice 
nice of 
h!7S, by 



In 1878, the Parliament of Canada by 40 Vict. c. 50, also amended 1883 

and partly repealed the same c. (59 of the Lower Canada Consoli- ^ ^ 

' •' ' . LouANr;i:i! 

dated Statutes, and in 1870 both the Parliament of Canada and the v. 

Lc^'islature of the Province of Quebec, the first, by 42 Vict. c. 48, Buildino'and 

and tlie second, by 43 Vict. c. 32, made provisions for the voluntary Investment 

... . Association. 
liquidation of building societies in the Province of Quebec. 

Chapter 69 of the Con. Stat, of Lower Canada has therefore been Q-B-. Quebec, 
considered by the Parliament of Canada iis being a Dominion law, Dorion, C.J. 
and been twice dealt with as such, while it has been tliree times 
amended by the Legislature of Quebec as a Provincial law. 

The Provincial Legislatures have the same exclusive right under 
secf. 92 of the B. N. A. Act, to pass laws relating to the subjects 
therein mentioned, as tlie Parliament of Canada has under sect. 91 
to pass laws on subjects not expressly assigned to the former. 

If seems therefore impossible that both legislative bodies should 
liave had tlie right to amend and re])eal in whole or in part, the 
provisions of c. 69 of the Consolidated Statutes of Lower Canada. 

The (question was submitted to us iu the case of McClanaghmi v. 
tlie ^'^ A}ut\i MntiiaJ BHildimj Sucietij, (1) and we there decided 
on the authority of L'Unioii l<t. Jacriuvs v. Bel isle, (2) that c. GO of 
the Con. Stat, of Lower Canada having a provincial object and 
affecting civil lights, came within the exclusive jurisdiction of t!>e 
Priivincial Legislature under sub-sects. 10, 11, 13 and 16 of sect. 92 
of the B. N. A. Act, and that the Act 42 Vict. c. 48, passed by the 
Pai'liainunt of Canada, to provide for tlie liquidation of building 
soc'e"ies in the Province of Quebec, was ultra vires. We, at the 
s'line time, mainlained the Act of the Quebec Legislature, 43 Vict, 
c. 32, which had the sam^ object as the Do. o'on Act. We tliereby 
held that the Provincial Legislature had exclusive control over the 
Acts authorising tlin establishinent of building societies in the Pro- 
vince of Quebec. 

It is however argued that the c(unpany, respondent, is not incor- 
porated f"V the purpose of doing business in the Province of Quebec 
only, but in all the Provinces of the Dominion, and that as lume of 
the Provinces could pass such an Act, the autJiority to do so vested 
in the Dominion Parliament, the subject not coming witliin any «>f 
the classes of subjects assigned exclusively to the Provincial Legis- 
latures by S( ct. 92 of the Im[)erial Act. 



(1) 24 L. C. J. 1G2 ; ante vol. 2, p. 237. 

(2) L. K. (] r. C. 31 ; ante vol. 1, p. 03. 



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1883 

LORANOEU 
V. 

Colonial 

buildino and 

Investment 

Ahsociation. 

Q.B., Quebec. 

Dorion, O.J. 



In the case of Regina v. Mohr (1), this Court hekl that a company 
incorporated by an Act of the Parliament of Canada (43 Vict. c. 67), 
to establish telephone lines in the several Provinces of the Dominion, 
liad no right to establish an independent line of telephone wholly 
witliin the Province of Quebec and not connecting this Province 
with any other of the Provinces, or not being extended beyond the 
limits of the Province, as sncii independent telejihone line did not 
come within any of the exceptions contemplated in paragraphs a, h 
and c of .-^ub- sect. 10 of sect. 92 of the B. N. A, Act. Our judg- 
ment in that case was based on an express provision of the xVct 
applying to lines of steamships, railways, tele,i,'raphs and other 
similar undertakings. Building societies are not expressly men- 
tioned in that sub-section, and their object is not of the same 
character, as the Avorks and undertakings to which it I'efevs. 
Altliough it is difficult to understand why a different rule should 
prevail, yet it cannot l>e said that building societies come witliin 
the express prcA'i.sion of sub-sect. 10, and that decision is not there- 
fore inconsistent with the opinion expressed by the Judicial Com- 
mittee of the Privy Council in the case of The Citizens' I)is. Co. v. 
Parsons (2). In that case, their Lordships in their observations on 
the judgment of Mr. Justice Taschereau of the Supreme Court, ex- 
pressed themselves to the effect, that the power to incor2)oi'atc an 
insurance company to c;irry on business in one of the Provinces of 
the Dominion, lay with the Legislature of that Pr()vince ; while the 
incorporation of companies to carry on business throughout the 
whole Dominion or in more Provinces than one, was vested in the 
Parliament of Canada, a< not coming within the classes of subjects 
exclusively assigned to the Provincial Legislatures. 

Although the question alluded to was not specially rai'-ed in the 
case of The Citizens' Ins. Co. v. Pnrsoiis (2), yet the opinions expressed 
were so directly to the -^loint, that we do not I'eel it would be com- 
petent for us to consider the questicm as being now an ojten one. 

We do not, however, consider tliat the opinion so expressed covers 
the present ease. Here we have a company incorporated to carrj' 
on its operations throiighnut the whole Dominion, which assumes to 
do business in one Province only, that is, in the Province of Quebec. 
The exclusive right of the Legislature of that Province to regulate 
the establishment of building societies within its own limits would 



(1) 7 Quebec Law Rep. 183 ; ante vol. 2, p. 257. 
(2) 7 App. Cas. 9G ; ante v.il. 2, p. 265. 



PRIVY COUNCIL, 



141 



be (lostroyed if the ±'arliament of Canaila could by granting general 1883 

powers, authorise a conirmuy to act within o;ie of the Provinces , '~^ 

^ . LOKANiiKH 

only. The inconvenience resulting from the exercise of such a v. 

power is well exemplified in the present case. If the company, BuiloinI'^vm) 
respondent, had been incorporated under the Acts in force in t!ie Investmknt 

Province of Quebec, relating to building societies, it would only 

have o'ltained the limited powers conferred upon such societies by Q-B. , Qu ebec, 
c. ()'.) of the Consolidated Statutes of Lower Canada and its amend- Dorion, C.J. 
meuts, but by going to the Parliament of Canada for a special Act of 
incorjioration, it has obtained powers of a nmch more extended 
character, and sncli as are not conferred on other building socle; i( s 
in the Province of Quebec. 

As the Dominion Parliament could not directly incorporate a 
buildhigs iciety to do business exclusively in the Province of Quebec, 
it would seem that a company incorpoiated to do business through- 
ouf the whole Dominion cannot restrict its business to one Province 
only, w thout infringing on the exclusive right of the Legislature of 
such Province to giant the auth-rity necessary for that purpose. 

We now come to the second question reUit'ug to the power granted 
to tiio company, re-'pondenf, to acquire and hold land, to an unlimited 
extent within tlio Province of Quebec. 

In the case of The ChaiuUerc iTold-min'mij Company v . Desbarats (1) 
it was held by the Judicial Committee of the Privy Council, confirm- 
ing the jutLinents of both the Superior Court and of this Court, that 
a c ifi)oration. wliether f reign or doinestii', is incapacitated Iroin 
actpiiring as w;ell as from holding lands in L.)wer Canada, without 
tlio [lennission of the Crown being first obtained. This restriction 
ivl ites to property and civil riglits (Art. ;5()(j and 830 Civil Code of 
L. ('.), and as such can only be removed by the Legislature of the 
i'ldvince of Quebec. Tlie Parliament of Canada, although it may 
have tlie power to iiicorp irate companies \o d ■ business throughout 
the wliol iJoniinion, has no right to alter or rep al the general or 
s|Hcial l.iws of the several Provinces aflfecting tlie tenure of lands or 
til'' n_lit to accjuire aul hold lands therein. 

This iiuestioii was formally decided in the case of T/ie Citizens' 
III"!. Co. V Po'«o)i,s, already cit 'd, and apart fr"m the general rule 
there laid down, vve lind in the oxhausive juilginent of thrii Lord- 
slii|is t'hi following passage, p. 117 : — " l!ut it; by no means follows 
(unless indeed the view of the learned Ju(l.;e is right as to the scope 
of the word , ' the reg ilation of trade an i C"mm' rce ') that because 

~ (1) L. U. 5 P. C. 277. 




m I 



142 



PRIVY COUNCIL. 



; J 






1883 tlie Dominion Parliament has alone the right to create a corporation 

, """"' 1 1 carry on business throuu'hout the Dominion that it alone has the 

LOUANGER " . . , » , ^r ■ CI 

V. riglit to regulate its contracts in each of the rrovinces. ouppose 

Colonial ^j^ Dominion Parliament were to incorporate a company, with power, 
Building and i i j' ^ ' 

Invkstmknt among other things, to purchase and hold lands throughout Canada 

* " in mortmain, it could scarcely be contended if such a company were 

il.B., Cjuebec. to carry on business in a Province where a law against holding land 
Dorion, C.J. in mortmain prevailed (each Province having exclusive legislative 
power, ' over propeuty and civil rights in the Province ') that it could 
hold land in tliat Provirce in contravention of the provincial legis- 
lation ; and, if a company were incorporated for the sole purpose of 
purchasing and holding land in the Dominion, it might happen that 
it could do no business in any part of it, by reason of all the Prov- 
inces having passed Mortmain Acts, though the corporation would 
still exist and preserve its status as a corporate body." 

The supposed case commented upon by their Lordships is exactly 
the one we have to deal with. The Civil Code in the articles already 
cited prohihits the acquisition > .f immoveable jjroperty by corporations 
without the previous permissif)n of the Crown, and c. 69, Con. Stat 
of Lower Canada (sects. 13 and 23), has specially guarded against the 
iiccumulation of landed estate, in the hnndsof building societies, by 
providing thut they could only hold real estate as security for loans 
made by such societies, or for moneys due for the payment of stock ; 
the only power to hold real estate absolutely being limited to an 
amount of $6,000. Yet the Dominion Parliament in contravention 
to both the general laws of the Province and the special laws enacted 
in reference to building societies, has incorporated- the company 
respondent for the very purpose, as stated in the preamble of the 
Act, of buying, leasing, and selling landed property, buildings and 
appurtennces (37 "Vict. c. 103, preamble iind sect. 4), and it is in 
evidence that acting under this Act, the company respondent has 
already Required large tracts of land in the City of Montreal, and its 
immediate vicinity. Whatever, therefore, may bd the ultimate 
decision as to the right of a company to do business in one Province 
only wl en that company is incorporated by the Parliament of 
C mada to do business throughout the whole Dominion, it is clear 
from the opinion expressed by the Judicial Committee of the Privy 
Council, that the c -nipany respondent h^id no power to deal in the 
purchase, lease and sale of real estate, etc., in the Province of 
Quebec. 

We therefore consider the judgment of the Superior Court to have 



PRIVY COUNCIL. 



143 



been erroneous, and acting upon the sugpfsstion contained in the 1888 
above extract from the judgment in the Citizens' Insurance Company ""^ 

V. Parsons, without deciding that the whole Act incorporating the v. 

company resjiondent is ultra vires, we hold that the company has no buildim'^xni) 
right to exercise in the Province of Quebec, the powers conferred by Investmknt 

its Act of incoi'poration to buy, lease and sell lauds, etc. , in the L 

Province of Quebrc, and it is by our judgment forbidden to do so. Q-B. , Qu ebec. 

Cross and Baby, JJ., concurred with Dorion, C.J , — '- 



' -r 

1 1 

ill 
'1 









1 t 



144 



PIUVY COUNCIL. 



PRIVY COUNCIL. 



m 



I ' 



1 ;' 






. 1 1 



iHil 



J. c* Ahohibald G. Hodge Appellant ; 

1888 AND 

The Quf:EN Respondent. 



Nov. 14,15, 16; 
Dec. 15. 



1 

■ f * 

■ i , 

\ 1 


I 
1 

( 



On appeal from the CouH of Appeal of the Province of Ontario. 

(Reported £ App. Gas. 117.) 

B. N. A. Act, ss. 91, 92— Liquor License Act of 1877, R. S. 0., 

c. 181 — Powers of Local Legislature — Delegation — 

Imprisonment I'.'Hh Hard Labour. 

Subjects which in one aspect and for one purpose fall within sect. 
92 of the B. N. A. Act, 1867, may in another aspect and for 
another purpotie fall wiihin sect. 91. 

Russell V. The Queen (7 App. Cas. 829 ; aute vol. 2, p. 12) explained 
and approved. 

Held, th, t '' The Liquor License Act of 1877," c. 181, Revised 
Statutes of Ontario, which, in respect of sects. 4 and 5, makes 
regulations in the naiuie of police or municipal regulati ns of a 
merely local cliaiacter for the good government of taverns, etc., 
does not, in respect of those sections interfere with the genei'al 
regulation of trade or commerce, but comes within Nos. 8, 15 
and 16 ot sect. 92 of the Act of 1867, and is within the powers 
of the Provincial Legislature. 

Held, further, that the Provincial Legislature had i)0wer by the 
said Act of 1867 to entrust to a Board of Commissioners author- 
ity to enact regulations of the above characer, and thereby to 
create offences and annex penalties thereto. 

" Imprisonment " in No. 15 of sect. 92 of the Act of 1867 means 
imprisonment with or without liard labour. 

Api)eal from a decision of the Coiu't of Appeal (June -SO, 
1882), (1) allowing the respondent's appeal from a deci- 
sion of the Court of Queen's Bench (June 25, 1881), (2) by 

* Present: — Loiin FrrzGiiUALi), Sin Baunks Peacock, Sir Robeht P. Col- 
lieu, Sib RioHAKi) Coi;c;h, and Siu Authuk Hobhouse. 
(1)7 App. Rep. 246 ; post, p. 166. (2) 46 U. C. Q. B. 141 ; post, p. 184. 



i I 



PRIVY COUNCIL. 



145 



which last mentioned decision it was ordered that a cer- 1883 
tain examination made on the 19th da}'- of May, 1881, by hougk 
and before the Police Magistrate of the City of Toronto, t^^, (j^^^^^ 
on the information and complaint of one Thomas Dexter, statement 
whereby the appellant was convicted for that he, the — 
appellant, did on the 7th day of May, 1881. unlawfully 
permit and suffer a billiard table to be used and a game 
of billiards to be played thereon, in his tavern, in the con- 
viction named and described as the St. James' Hotel, situ- 
[118] ate within the City of Toronto, during the time 
prohibited by the "Li([Uor License Act," (Revised Statutes 
of Ontario, c. 181) for the sale of liquor therein, against 
tlie form of the resolution of the License Commissioners for 
the City of Toronto for regulating taverns and shops, 
passed on the 25th of April, 1881, should be and the same 
was quashed. 

The appellant at the time of the alleged offence was 
tlie holder of a liquor license, issued on the 25th of April, 
1881, by the board of License Commissioners for the City 
of Toronto, under the " Liquor License Act " of the Pro- 
vince of Ontario, in respect of the St. James' Hotel, which 
license remained in force until the 1st of May, 1882. 

The appellant was also then the holder of a license dated 
the 24th of February, 1881, issued under the authority of 
tlie " Municipal Act " (Revised Statutes of Ontario, c. 174, 
s. 4G1), by the corporation of the City of Toronto, authoriz- 
ing him to carry on the business or calling of a keeper of 
a billiard saloon with one table for hire, which last-men- 
tioned license remained in force until the 31st )f Decem- 
lier, 1881. 

The facts are stated in the judgment of their Lord- 
ships (1). 



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U 



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(1) [The shorthand writers' notes 
of the proceedings before the Judi- 
cial Committee in this case are 
10 



printed in the Dominion Sessional 
Papers of 1884, vol. 17, Sessional 
Paper 30.] 



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1883 

Hodge 

I'. 

Thk (^ueen. 

Argument. 



146 



PRIVY COUNCIL. 



Kerr, Q.C. (of th j Cdnadian Bar), and Jenne, for 
appellant : — 



the 



First, the Ontario Assembly is not competent to legislate 
in regard to licenses for the sale of liquor, and the regula- 
tion of licensed houses. The B. N, A. Act, sect. 92, sub- 
sect. 9, empowers the Pi'ovinces to legislate in regard to 
shop and tavern licenses, but only for the purpose of 
raising a revenue. Sect. 91, sub-sect. 2, gives the regula- 
tion of trade and commerce to the ])ominion. In the case 
of Russell V. The Queen (1) it was held that the power to 
prohibit and regulate the traffic belonged to the Dominion. 
It is very desirable that legislation on this subject should 
be uniform ; and this cannot be secured if each Province 
can pass a licensing law of its own. Second, even if the 
Ontario Legislature could deal with the subject it could 
not delegate its powers to License Commissioners. In llie 
Queen v. Burah (2) it is laid down that a Local Legisla- 
[1 19] ture cannot create a new legislative power not created 
or authorized by the Imperial Parliament. In this case 
the Local Leoishiture has assioned to three officials the 
power to define offences and impose penalties. But even 
if the statutory powers of the Commissionem are intra 
vires of the Legislature, this resolution is not a good exer- 
cise of their powers. They assume to regulate billiard 
tables which ought to be regulated by the City Council in 
accordance with the Rev. Stat. Ont. c. 174. The resolu- 
tion is also bad because it places keepers of billiard tables 
who sell liquor at a disadvantage as compared with those 
who do not. A by-law discrindnating in favour of one 
class of traders and against another is bad : see Jonas v. 
Gilbert (3). See also Cooley on Constitutional Limita- 
tions, pp. 201, 503. 

(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12. (2) 3 App. Cas. 889, 905. 
(3) 5 Can. S. C. R. 356. 



PRIVY COUNCIL. 



147 



1883 



Hodge 

V. 



(Loud FitzGeuald : — We will take the passages from 
Cooley as part of your argument but not as authority.) 

Lastly, there is no power in the Legislature or in the t„j. queen. 
Commissioners to impose the punishment of hard labour, akotmest. 
There is a wide difference between simple punishment 
and hard labour : Hawkins' Pleas of the Crown, p. 184; 
Easton's Case (1). The B. N. A. Act, sect. 92, sub -sect. 
15, prescribes " tine, penalty or imprisonment," as the 
punishments to be imposed for breach of provincial 
laws. The decision in Fraivleys Case (2) was based 
on the mistaken assumption that the Provinces surren- 
dered their right into the hands of Parliament at confed- 
eration. There was a re-ariangement and transfer of 
some provincial powers to the Dominion, among others 
of the power to deal with criminal huv, along with 
which the power to impose hard labour naturally goes. 
The penalty imposed by the resolution is a fixed penalty 
and therefore unreasonable : Saunders v. South- Eaai em 
Railway Company (3). 

Davey, Q.C., and JEviiliiis Irving, Q.C. (of the Cana- 
dian Bar), {Raleigh with them), for the Crown : — 

This question must be decided by the rules laid down in 
Citizens' Ins^^rance Company of Canada v. Parsons (4). 
[120] Does the Liquor License Act belong to any of the 
classes of subjects assigned to the Provinces ? The liquor 
trade, like all other trades, is subject to local regulation 
for purposes of police. The Commissionei's are a "muni- 
cipal institution " within sub-sect. 8 of sect. 92 of the B. 
N. A. Act. The regulation of licensed houses is primarily 
a matter of police ; the interference with " trade and 
commerce " is only incidental. Russell v. The Queen (5) 



■11 



m 



■as 



'4' 



f.' 

\% 

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(1) 12 A. & E. 645. 

(2) 46 U. C. Q. B. 163 ; 7 App. Rep. 

246 ; ante, vol. 2, p. 576. 

(3) 5 Q. B. D. 462. 



(4) 7 App. Cas. 96 ; ante, vol. 1, 
p. 265. 

(5) 7 App. Cas. 829 ; ante, vol. 2, 
p. 12. 



148 



TRIVY COUNCIL. 



1883 

HODOK 

r. 
The (^uekn. 

Akgumknt. 






Illljih 



establishes the right of the Dominion to legislate on the 
liquor traffic as a nK tter atiecting the jieaco and good gov- 
ernment of Canada. This is not inconsistent with the 
riirhtof the Provinces to lo<;isliite on the same subioct for 
purposes of police. This is recognised in sect. 112 of the 
Canada Temperance Act itself. Of course if the Province 
restricts any trade by requiring a license, that must be 
done bona tide for the purpose of raising a revenue. The 
right to regulate licensed houses is generally recognised 
in Canada, as appears from the cases collected in Cart- 
wright's Cases on the B. N. A. Act : see City of Fred- 
ericton v. The Queen (1); In re Slavin and the Corporation 
of Ovillia (2); Jieg. v. Justices of Kincf's County (3); 
Keefe v. Maclennan (4j; Blouin v. Corporation of Quebec 
(5) ; Corporation of Three Rivers v. Suite (6). 

As to the delegation to Commissioners, the maxim 
delegatus non potest delegare does not apply to a Local 
Legislature : The Queen v. Burah (7). There is here no 
delegation of legislative authority — only of the powers to 
make by-laws. The resolution is within the powers of 
the Commissioners. They do not attempt to regulate 
billiard tables ; it is as liquor licensee, not as billiard 
licensee, that the appellant is required to close his billiard 
saloon. As to the penalties which may be imposed, sect. 
59 of the Liquor License Act prescribes fine and imprison- 
ment; sect. 70 adds the powers for enforcing by-laws 
given to municipal councils by sects. 400-407, and sect. 
4.54 of the Municipal Act, Rev. Stat. Out. c. 174, and these 
powers include the imposition of hard labour. By Con. 
Stat. Can. 1859, c. 99, hard labour could be added 

(1) 3 Can. S. C. R. 505 ; ante, vol. (4) 2 Russell & Chesley, 5 ; ante, 
2, p. 27. vol. 2, p. 400. 

(2) 36 U. C. Q. B. 159 : ante, vol. (5) 7 Quebec L. R. 18 ; ante, vol. 
1, p. 688. 2, p. 368. 

(3) 2 Pugsley, 535 ; ante, vol. 2, p. (6) 5 Legal News, 330 ; ante, vol. 
499. 2, p. 280. 

(7) 3 App. Cas. 889, 904. 



PRIVY COUNCIL. 



149 



[121] to any sentence of iniprisonnicnt. Tliat Act 1883 
is still in foice as to ottencos against provincial laws; Kodoe 
as to offences af,'ainst the criminal law (which is assij^ned t^^^ qikek 
ti» the Dominion) it has been re-enacted. The term " im- AuouMkNT. 
prisonmcnt " is very general, and includes imprisoment 
with hard labour : see Stephen, Digest of Criminal Law, 
art. 4, which gives the eft'ect of 28 & 20 Vict. c. 126. 
In construing a conviction, the term " inii)risoninent " 
would not be assumed as against the prisoner to mean 
imprisonment with hard lal)our. But in construing an 
instrument of government such ua the B. N. A. Act, a 
wide construction should be given to the powers of the 
Local Legislature: see Vattel.Book 2,c.l7, ss. 2(So, 280, cited 
in the judgment appealed from (1). The resolution is not 
open to objection as prescribing a fixed penalty, for by 
sect. 402 of the Municipal Aut (incorporated in the Liquor 
License Act) the justice may connnit " for the term or 
8orae part thereof specitied in the by-law." They also 
referred to liefj. v. O'xiourke (2) and Archbold's Criminal, 
Pleading, 19tli ed., p. 56. 

Kerr, Q.C., in reply : — 

The Provinces have a strictly limited jurisdiction, and 
though they may amend their constitutions, they may 
not take more power than Parliament gave them. "Muni- 
cipal Institutions " includes only what was generally 
included under that head at confederation. In some 
of the Pi'ovinces the Legislature had never undertaken to 
restrict the liquor trade. He referred to Dohie v. Tennixn'- 
alities Board (3). 



:i 



.mm ■ 

fit! 



m 



The judgment of their Lordships was delivered by 

Sir Barnes Peacock : — 
The appellant, Archibald Hodge, the proprietor of a 

1) See note (1), post, p. 169. (2) 1 Ont. Rep. 464 ; ante, vol. 2, p. 044. 

(3) 7 App. Caa. 136 ; ante, vol. 1, p. 351. 



411 



ri ' '1' 



150 



PllIVY COUNCIL. 



I 



|l. 



1883 tavern known as the St. James' Hotel, in the City of 
Hodge Toronto, and who, on the 7th May, 1881, was the hohh'r 
THKriuEKN. "^i" ^ license for the retail of spirituous liquors in liis 
JuiiGMENT. tavern, and also licensed to keep a billiard saloon, was 
summoned belbre the Police Magistrate of Toronto, for a 
[122] breach of the resolutions of the License Commis- 
sioners of Toronto, and was convicted on evidence suf- 
ficient to sustain the conviction if tlie magistrate had 
authority in law to make it. 

The conviction is as follows, viz. : — 

" Conviction. 

"Canada: Province of Ontario, County of York, City 
of Toronto, to wit : — 

"Be it remembered, that on the li)th day of May, in 
the year of our Lord one thousand eight hundred and 
eighty-one, at the city of Toronto, in the County of York, 
Archibald G. Hodge, of the said city, is convicted ))efore 
me, George Taylor Denison, Escpiire, Police Magistrate in 
and fcr the said city of Toronto, for that he, the said 
Avchil)al(l G. Ifodge, being a person whu, after the i>assing 
of the resolution hereinaPter mentioned, received, and 
who, at the time of the committing of the offence herein- 
after mentionec, held a license under the Liquor License 
Act, for and in re.'-pect of the tavern known as tlie St. 
James' Hotel, sit.uate on Yoi'k Street, within the city of 
Toronto, on the 7th day of jVIay in the year aforesaid, at 
the said city of Toronto, did unlawfully permit, allow and 
sutler a, billiard table to be used, and a game of billiards 
to be played thereon in the saitl tavern, during the time 
prohibited by the Liquor License Act for the sale of 
liquor therein, to wit. after the hour of seven o'clock at 
night on tlie said seventh day of May, Ijeing Saturday, 
aa'ainst t' o form of the resolution of the ^ icense Com- 
missioners for the city of Tori'^to for regulating taverns 



rmvY COUNCIL. 



151 



1883 



Hodcp: 

V. 



and shops, passed on the twenty-fifth day of April, in the 
year aforesaid, in such case made and provided. 

" Thomas Dexter, of said city, License Inspector of the the Queen. 
city of Toronto, being the conipUiinant. Judgment. 

"And I adjudge the said Archibald G. Hodge, for his 
said offence, to forfeit and pay the smn of twenty dollars, 
to be paid and applied according to law ; and also to pay 
to the said Thomas Dexter the sum of two dollM's and 

ft 

eighty-five cents for his costs in this behalf ; and if the 
said several sums be not paid forthwith, then I order that 
the same be levied by distress and sale of goods and 
chattels of the said Archibald G. Hodge ; and in default of 
sutficient distress, T adjudge the said Archibald G. Hodge 
to 1)6 imprisoned in the common gaol of the said [12 1] 
city of Toronto and County of York, at Toronto, in the 
county of York, and there be kept at hard labour for the 
space of fifteen days, unless the said .sums, and tlie costs 
and charges of conveying the said Archibald G. Hodge 
to the said gaol, shall be sooner paid." 

On the 27th May, 1881, a rule nisi was obtained to 
remove that conviction into the Court of Queen's Bench 
for Ontario, in order that it should be (|uash:'d as illegal, 
on the grounds, 1st, that the said resolution of the said 
License Commissioners is illegal and unauthorized; 2nd, 
that the said License Commissioners hail no authority to 
pa'^s the resolution prohil)iting the game of billiards as in 
the said resolution, nor had they power to authorize the 
imposition <jf a fine, or, in default of payment thereof, 
iiuprisonment for a violation of the said resolution ; -h'd, • 
the Liijuor License xVct, und<;r which the said Consniis- 
sioners have assumed to pass the said resolution, is 
beyond the authority of the Legi dature of Ontario, and 
does not authorize the said resolution. 

It will be observed that the question whether the 
Local Letjislature could confer authoritv on the License 






■\.. 

it;; 



.1 



,'3J 



152 



PRIVY COUNCIL. 



1883 

HODGF 

V. 

The (^uken. 
JunujiENT. 



Ill' : 



l-'l 



Commissioners to make the resolution in question is not 
directly raised by the rule nisi. On the 27th June, 1881, 
that rule was made absolute, and an order pronounced by 
tlio Court of Queen's Bench to quash the conviction. The 
jurlgment of the Court, which seems to have been unani- 
mous, was delivered by Ilagarty, C. J., with elaborate 
reasons, but finally it will be found that the decision of 
the Court rests on one ground alone, and does not profess 
to decide the question which on this appeal was princi- 
pally discussed before th^^ir Lordships. The Chief Jus- 
tice, in the course of his judgment, .says : — 

" It was stated to us that the parties desired to present 
directly to the Court the very importiuit question whether 
the Local Legislature, assuming that it had the power 
themselves to make these regulations and create these 
offences, and annex penalties for their infra,c<"ion, could 
[124] delegate such powers to a board of Commissioners 
or any other authority outside their own legislative body." 

And, again, he adds : — 

" We are thus brought in face of a very serious ques- 
tion, viz., the power of the Ontario Legislature to vest in 
the License Board the power of creating new oifences and 
annexing penalties for their commission." 

And concludes his judgment thus, referring to the Reso- 
lutions : — 

" The Legislature has not enacted anv of these, but has 
merely authorized each Board in its discretion to make 
them. 

" It seems very difReult, in our judgment, to hold that 
the confederation Act gives any such power of delegating 
autlK)rity, first of creating a quasi offence, and then of 
punishing it by fine or imprisonment. 

" We tiiink it is a power that must bo exercised by the 
LegislatiH'e alone. 

" In all these questions of ultra vires the powers of our 



PRIVY '"OUNCIL. 



153 



1883 



|)ut has 
make 



1(1 that 
gating 
hen of 



HoncK 

V. 

The (.»ueen. 



Legislature, we consider it our wisest 'ourse not to widen 
the discussion by considerations not necessarily involved 
in the decision of the point in controversy. 

" We, therefore, enter into no general consideration of juiigjmcnt 
the powers of the Legislature to legislate on this subject; 
but assuming their right so to do, \vu feel constrained to 
hold that they cannot devolve or delegate these powers 
to the discretion of a local Board of Commissi"ners. 

" We think the defendant has the right to say that he 
has not offended against any 'law of the Province,' and tliat 
the convictions cannot be supported." 

The cp.se was taken from the Queen's Bench on appeal 
to the Court of Appeal for Ontario, under the Ontario 
Act, 44 Vict., c. 27, and on the 30th June, 1882, that 
C (t( reversed the decision of the Queen's Bench, and 
iitl^riied the conviction. 

Two questions only appear to have been discussed in 
the Court of Appeal, 1st, that the Legislature of Ontario 
had not authority to enact such I'egulations as were [12o] 
enacted by the Board of Commissioners, and to create 
offences and annex penalties for their infraction ; and, 2nd, 
thiit if the Legislature had such authority, it could not 
('."legate it to the Board of Commissioners, or an}'- other 
authority outside their own legislative body. 

This second ground was that on which the judgment of 
the Court of Queen's Bench rested. 

The judgments delivered in the Court of Appeal by 
Spragge, C, J., and Burton, J. A., ai-e able and elaborate, 
and were adopted by Patterson and Morrison, JJ., and 
their Lordships have derived considerable aid frof>i a 
careful consideration of the reasons given in both Courts. 

The appelhint now .seeks to rever.se the decision of the 
Court of Appeal, both on the two grounds on which the 
case wa.s discu,s.sed in that Court and on others technical 
but substantial, and which were urired before this Boartl 



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.iji i|i 




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154 



PRIVY COUNCIL. 



1883 

HODGK 

V. 

The Queen. 
Judgment. 



'; !■ 



I i 



with zsal and ability. Tlie main questions arise on an 
Act of the Lefrisliiture of Ontario, and on what liave been 
called the resolutions of the License Commissioners. 

The Act in question is chapter 181 of tlie Revised 
Statutes of Ontario, 1877, and is cited as "The Liquor 
Lic(!nse Act." 

Sect. ?> of this Act provides for the appointment of a 
Board of License Commissioners for each city, county, 
utnon of counties, or electoral district as the Lieutenant- 
Governor may think fit, and sects. 4 and 5 are as fol- 
lows : — 

" Sect. 4. The License Commissioners may, at any time 
before the first day of May in each year, pass a resolution, 
or resolutions, for rofjulatino- and detcrminirfj the mat- 
ters following, that is to say : — 

"(1.) For defininuj the Conditions and (lualitications re- 
(luisite to obtain tavern licenses for the retail, 
within the municipality, of spirituous, fermented, 
or other manufactured liquors, and also sliop 
licenses for the .sale by retail, within the muni- 
cipality, ol' such liquors in shops or places other 
than taverns, inns, alehouses, beerhouses, or places 
of piiblic entertainment. 

•'(2.) For Ihuiting the number of tavern and sho]) 
licenses respectively, and for defining the respec- 
tive times and localities within which, and [1-G] 
the persons to whom, such limited number may 
be issued within the year, from the first day of 
May of one year till the thirtieth day of April* 
inclusive, of tin; next year. 

"(3.) For declaring tliat in cities a number not excectl- 
ing ten persons, and in towns a nundier not ex- 
ceeding four persons, (pialilied to have a tavern 
license, nia} be exempted from the necessity of 



PRIVY COUNCIL. 



156 



having all the tavern accommodation required 1883 
by law, HoncE 

" (4.) For regulating the taverns and shops to be licensed, the qVekm. 

"(5.) Tor fixing and defining the duties, powers, and juJ^e^r. 
privileges of the Inspector of Licenses of their 
district. 

" Sect. 5. In and by any such Resolution of a Board of 
License Commissioners, the said Board may impose pen- 
alties for the infraction thereof." 

Sect. 43 prohibits the sale of intoxicating liquors from 
or after the hour of seven of the clock on Saturday till 
six of the clock on Monday morning thcreaft jr. 

Sect. 51 imposes on any person who sells spirituous 
liquors without the license by law required, or otherwise 
violates any other provision of the Act, in respect of 
wl)ich violation no other punishment is prescribed, for 
the first offence a penalty of not less than twenty dollars 
and not more than fifty dollars, besides costs, and for the 
second offence imprisonment with hnrd labour for fi period 
not exceeding three calendar months. 

Sect. 52. For punishment of offences against sect. 4-3 
(rc(iuiring taverns, etc., to be closed from seven o'clock on 
Saturday night until six o'clock on Monday morning), a 
]»enalty for tlie first offence of not less than twenty dol- 
lars with costs, or fifteen days imprisonment with hard 
labour, and with increasing penalties for second, third 
and fourth offences ; and sect. 70 provides that where the 
resolution of the License Connnissioners imposes a pen- 
alty it may bo recovered and enforced before a magistrate 
in the nutuner and to the extent that by-laws of muni- 
cipal corporations may be enforced under the authority of 
the Municipal Act. 

License Commissioners were duly appointed under this 
statute, who, ou the 25th April, 1881, in pursuance [127] 
of its provisions, made the resolution or reguhitioR 






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156 



PRIVY COUNCIL. 



1883 



HODflE 

r. 
The Queen. 



n 



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i 



now questioned in relation to licensed taverns or shops in 
the city of Toronto, vvhicli contains (inter alia) the fol- 
lowing paragraphs, viz. : — 

Judgment. " Nor shall any such licensed per.son, directly or indi- 
rectly as aforesaid, permit, allow, or suffer any bowling 
alley, l)illiard or Lngatelle table to be used, or any games 
or amusements of the like description to be piayed in such 
tavern or shop, or in or upon any premises connected 
therewith, during the time prohibited by the Liquor 
License Act, or by this resolution, for the sale of liquor 
therein. 

"Any per.son or persons guilty of any infraction of any 
of the provisions of this resolution shall, upon ccmviction 
thereof before the Police Magistrateof the city of Toronto, 
forfeit and pay a penalty of twenty dollars and costs ; 
and in default of ))ayiuent thereof forthwith, the said 
Police Magistrate shall issue his warrant to levy the .said 
penalty by distress and sale of the goods and chattels of 
the offender ; and in default of sufficient distress in that 
behalf, the said Police Magistrate shall by warrant com- 
mit the offender to the common gaol of the city of Toronto, 
with or without hard labour, for the period of fifteen 
days, unless the said penalty and costs, and all co.=ts of 
distress and commitment be sooner paid." 

The appellant was the holder of a retail license for his 
tavern, and had signed an undertaking as follows : — 

" We, the undersigned holders of licenses i'or taverns 
and shops in the city of Toronto, re; pectively acknowledge 
that we have severally and respectively received a copy 
of the resolution of the License Commissioners of the city 
of Toronto to regulate taverns and .shops, passed on the 
25th day of April last, hereunto annexed, upon the sev- 
eral dates set opposite to our respective signatures here- 
under written, and we severally and respectively promise, 



PRIVY COUNCIL. 



157 



iiops in 
the fol- 



)!• indi- 
)Owling 

games 

in such 

nnected 

Liquor 
l' liquor 

n of any 
iiviction 
roronto, 
I costs ; 
the said 
the said 
.ttels of 
in that 
,nt coui- 
)vonto, 
fifteen 
oHts of 

for his 

taverns 
)wledge 

a copy 
~,lie city 

on the 
he sev- 
U here- 
b-omi.se, 



undertake, and agree to ohserve and perform the condi- 
tions and provisions of such resolution. 

" 2nd May, Tavern. A. C. Hodge, (l.s.)" 

He was ah ■> tlie liolder of a billiard license for the city 
of Toronto to keep a billiard saloon with one table [128] 
for the 3'ear 1881, and, under it, had a billiard table in his 
tavern. 

He did permit this billiard table to be used as such 
within the period prohihiled by the resolution of the 
License Commi ^ -ioners, and it was for that infraction of 
their rules he was prosecuted and convicted. 

The preceding statement of the facts is sufficient to 
oiiable their Lordships to determine the questions raised 
on the appeal. 

Mr. Kerr, Q.C., and Mr Jeune, in their full and very 
able argument for the ap;v llaut, informed their Lordships 
tliat the first and principal question in the cause was 
whether " The Liquor License Act of 1877," in its 4th 
aud 5th sections, was ultra vires of the Ontario Legisla- 
ture, and properly said that it was a matter of in.portance 
as between the Dominion Parliament and the Legislature 
of the Province. 

Their Lordships do not tliink it necessary in the present 
case to lay down any general rule or rules for the con- 
struction of the British North America Act Thoy are 
impressed with the justice of an observation l)y Hagarty, 
C. J., " that in all these question^* of ultra vires it is the 
wisest course not to wideii tlie discussion by considera- 
tions not necessarily involved ir.. the decision of the point 
in controversy." They do not forget that in a previous 
decision on tliis same statute (Citizens Instirance Com- 
pany uf Canada v. Parsoi).s) (1) their Lordships recom- 
mended that, " in performing the difficult duty of deter- 

(1) 7 App. Cas. 96; ante, vol. 1, p. 265. 



1883 
HoDc; K 

V. 

The Qukkn. 

JUDGMFM. 



^l^. 







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>fl 



158 



PRIVy COUNCIL. 



1883 

Ho DOE 

V. 

Thk Queen. 

Jl.'l)GMK.\T. 



(il 



mining sucli questions, it will be a wise course for those on 
whom it is thrown to decide each case which arises as best 
they can, without entering more largely upon the inter- 
j)retation o£ the statute than is necessary for the decision 
of the particular question in hand." 

The appellants contended that the Legislature of On- 
tario had no power to pass any Act to regulate the liquor 
traffic ; that the whole power to pass such an Act was 
conferred on the Dominion Parliament, and consequently 
taken from the Provincial Legislature, by sect. 91 of the 
British Nortli America Act, 1867 ; and that it did not 
come within any of the classes of subjects assigned ex- 
clusively to tlie Provincial Legislatures by sect. 92. The 
class in sect. 91 which the Liquor License Act, 1877, was 
[129] said to infringe was No. 2, "The Ilegulatiou of Trade 
and Commerce," and it was urged that the decision of this 
Board in Russell v. The Queen (1) was conclusive that the 
whole subject of the liquor tiaffic was given to the 
JJominion Parliament, and consequently taken away fi-om 
the Provincial Legislature. It appears to their Lordships, 
however, that the decision of this tribunal in that case has 
not the effect supposed, and that, when properly consider- 
ed, it should be taken rather as an authority in support 
of the judgment of th« Court of Appeal. 

The sole question there was, whether it was competent 
to the Dominion Parliament, under its general powers 
to make laws for the peace, order, and good government 
of the Dominion, to pass the Canada Temperance Act, 
1878, which was intended to be applicable to the several 
provinces of the Dominion, or to such parts of the pro- 
vinces as should locally adopt it. It was not doubted 
tliat the Dominion Parliament had such authority under 
sect. 91, unless the subject fell within some one or more 



(1) 7 App. Caa. 829 ; ante, vol. 2, p. 12. 



PIUVY COUNCIL. 



159 



1883 



HoixiK 

V, 



of the clasLOs of subjects, which by sect. 92 were assigned 
exclusively to the Legislatures of the provinces. 

It was in that case contended tiiat the s'lbject of the theQuken. 
Temperance Act properly belonged to No. l:,' of sect. 92, jui^ient. 
" Property and Civil Rights in the Province," which it 
was said belonged exclusively to the Provincial Legisla- 
ture, audit was on what setMus to be a misapplicaticjn of 
some of the reasons of this board in observing on that 
contention that the appellant's counsel principally relied. 
These observations should be interpreted according to the 
subject matter to which they were intended to apply. 

Their Lordships, in that case, after comparing the Tem- 
perance Act with laws relating to the sale of poisons, 
observe that, — 

" Laws of this nature designed for the promotion of 
])ublic order, safety, or morals, and which subject those 
who contravene them to criuunal procedure and punish- 
ment, belong to the subject of public wrongs rather than 
to that of civil rights. They are of a nature which fall 
within the general authority of Parliament to make laws 
for the order and good government of Canada." 

[130] And again : — ■ 

" What Parliament is dealing with in legislation of 
this kind is not a matter in relation to property and its 
rights, but one relating to public order and safety. That 
is the primary matter dealt with, and though incidentally 
the free use of things in which men may have property is 
interfered with, that incidental interference does not alter 
the character of the law." 

And their Lordshi|)s' reasons on that part of the case 
are thus concluded : — 

" The true nature and character of the legislation in the 
particular instance under discussion must always be de- 
termined, in order to ascertain the class of subject to 
which it really belongs. In the present case it appears to 



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PRIVY COUNCIL. 



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1883 

HODGK 

V. 
ThK l^UEKN. 

JuiXiMENT. 



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their Lordships for the reasons ah'cacly given, that the 
matter of the Act in question does not properly belong to 
the class of subjects ' Property and Civil Rights' within 
the meaning of sub-sect. 13." 

It appears to their Lordships that liussell v. The Queen, 
(1) when properly understood, is not an authority in sup- 
port of the appellant's contention, and their Lordsliips do 
not intend to vary or dejjart from the reasons expressed for 
their judgment in that case. The principle which that 
case and the case of the Citizens' Instivdiice Company (2) 
illustrate is, that subjects which in one aspect and for 
one purpose fall within sect. 92, may in another aspect 
and for another pui-pose fall within sect. 91. 

Their Lordships proceed now to consider the subject 
matter and legislative character of sects. 4 and 5 of " Tbe 
Liquor License Act" of 1^77, cap. 181, Revised Statutes 
of Ontario. That Act is so far confined in its operation to 
municipalities in the Province of Ontario, and is entirely 
local in its character and operation. It authorizes the 
appointment of License Commissioners to act in each 
municipality, and empowers them to pass under the name 
of resolutions, what we know as by-laws, or rules to de- 
fine the conditions and qualifications requisite for obtain- 
ing tavern or shop licenses for sale by retail of spirituous 
liquors within the municipality ; for limiting the number 
[131] of licenses ; for declaring that a limited number 
of persons qualihed to have tavern licenses may be 
exempted from having all the tavern accommodation re- 
quired by law, and for regulating licensed taver-ns and 
shops, for defining the duties and powers of license in- 
spectors, and to impose penalties for infraction of their 
resolutions. These seem to be all matters of a merely 
local nature in the province, and to be similar to, though 

(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12. 

(2) 7 App. Cas. 96 ; ante, vol. 2, p. 265. 



PRIVV CMUNX'IL. 



161 



abject 
" The 
atutes 
ion to 
tirely 
■s the 
each 
name 
to de- 
jtain- 
tuous 
mhei" 
inber 
y be 
n rc- 
and 
e in- 
their 
erely 
lough 



not identical in all respects with, the powers then belong- iwa 
ing to municipal institutions under the previously exist- Hodok 
ing laws passed by the Local Parliaments. THE<iiEEN 

Their Lorships consider that the powers intended to bo jvpu^em-. 
conferred by the Act in question, when properly under- 
stood, are to make regulations in the nature of police or 
municipal regulations of a merely local character for the 
good government of taverns, etc., licensed for the sale of 
li([Uors by retail, and such as are calculated to preserve, in 
tlie municipality, peace and public decency, and repress 
drunkenness and disorderly and riotous conduct. As 
such they cannot be said to interfere with the general 
reu'ulation of trade ajid connnerce which belongs to the 
l)(jminion Parliament, and do not conflict with the pro- 
visions of the Canada Tempeiance Act, which does not 
appear to have as yet been locally adopted. 

The subjects of legislation in the Ontario Act of 1877, 
sects. 4 and 5, seem to come within the lieads Nos. 8, 
15, and 16 of sect. 92 of British North America Statute, 
1867. 

Their Lordships are, therefore, of opinion that, in rela- 
tion to sects. 4 and 5 of the Act in question, the Legisla- 
ture of Ontario acted within the powers conferred on it 
by the Imperial Act of 1867, and that in this respect 
there is no conflict with the powers of the Dominion Par- 
liament. 

Assuming that the Local Legislature had power to 
legislate to the full extent of the resolutions passed by 
the License Commissioners, and to have enforced the ob- 
servance of their enactments by penalties and imprison- 
ment with or without hard labour, it was further con- 
tended that the Imperial Parliament had conferred no 
authority on the Local Legislature to delegate those 
powers to the License Conunissioners or any other pei'sons, 
In other words, that the power conferred by the Imperial 
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162 



PRIVY COUNCIL. 



Parliament on the Local Legislature should be esercised 
[132] in full by that body, and b^ that body alone. The 
maxim, delegatus non potest delegare, was relied on. 

It appears to their Lordships, however, that the objec- 
tion tlius raised by the appellants is founded on an entire 
misconception of the true character and position of the 
Provincial Legislatures. They are in no sense delegates 
of or acting under any mandate from the Imperial Par- 
liament. When the British North America Act enacted 
that there should be a Lejrislature for Ontario, and that 
its Legislative Assembly should have exclusive authority 
to make laws for the province and for provincial purposes 
in relation to the matters enumerated in sect. 92, it con- 
ferred powers not in any sense to be exercised by delega- 
tion from or as agents of the Imperial Parliament, but 
authority as plenary and as ample within the limits pre- 
scribed by sect. 92 as the Imperial Parliament in the 
plenitude of its power possessed and could bestow. 
Within these limits of subjects and area the Local Legis- 
lature is supreme, and has the same authority as the 
Imperial Parliament, or the Parliament of the Dominion, 
would have had under like circumstances to confide to a 
municipal institution or body of its own creation author- 
ity to make by-laws or resolutions as to subjects specified 
in the enactment, and with the object of carrying the 
enactment into operation and effect. 

It is obvious that such an authority is ancillary to 
legislation, and without it an attempt to provide for 
varying details and machinery to carry them out miglit 
become oppressive, or absolutely fail. The very full and 
very elaborate judgment of the Court of Appeal contains 
abundance of precedents for this legislation entrusting a 
limited discretionary authority to others, and has many 
illustrations of its necessity and convenience. It was 
argued at the bar that a Legislature conunitting import- 



PRIVY COUNCIL. 



163 



1883 



ant regulations to agents or delegates effaces itself. That 

is not so. It retains its powers intact, and can, when- Hodgk 

ever it pleases, destroy the agency it has created and set the Qukkn. 

up another or take the matter directly into its own jd^^kni. 

hands. How far it shall seek the aid of subordinate 

af^encies, and how long it shall continue them, are matters 

for each Legislature, and not for courts of law, to decide. 

Their Lordsliips do not think it necessary to pursue 
this subject further, save to add that, if by-laws or resolu- 
[133] tions are warranted, power to enforce them seems 
necessary and equally lawful. Their Lordships have 
now disposed of the real questions in the cause. 

Many other objections were raised on the part of the 
appellant as to the mode in which the License Commis- 
sioners exercised the authority conferred on them, some 
of which do not appear to have been raised in the Court 
below, and others were disposed of in the course of the 
argument, their Lordships being clearly of opinion that 
the resolutions were merely in the nature of municipal 
or police regulations in relation to licensed houses, and 
interfering with liberty of action to the extent only 
that was necessary to prevent disorder and the abuses of 
liquor licenses. But it was contended that the Provin- 
cial Legislature had no power to impose imprisonment or 
hard labour for breach of newly created rules or by-laws, 
and could confer no authority to do so. The argument 
was principally directed against hard labour. It is not 
unworthy of observation that this point, as to the power 
to impose liard labour, was not raised on the rule nisi 
for the certiorari, nor is it to be found amongst the 
reasons against the appeal to the Appellate Court of 
Ontario (I). 



(1) [The objection that a Provin- 
cial Legislature has not {wwer to 
enforce its laws by imposing hard 



labour as a punishment was raised in 
the case of Renina v. Frawley (7 
App. liep. 240 ; ante, vol. 2, p, 676), 



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1883 
Hodge 

V. 

Thk Quekn. 
juixjment. 



164 



PRIVY COUNCIL, 



It seems to have been either overlooked or advisedly 
omitted. 

If, as their Lordships have decided, the subjects of 
legislation come within the powers of the Provincial 
Legislature, then No. 15 of section 92 of the British North 
America Act, which provides for " the imposition of pun- 
ishment by fine, penalty, or imprisonment, for enforcing 
any law of the Province made in relation to any matter 
coming within any of the classes of subjects enumerated 
in this section," is }ipj)licable to the case before us, and 
is not in contlict with No. 27 of section 91 ; under these 
very general terms, " the imposition of punishment by 
imprisonment for enforcing any law," it seems to their 
Lordships that there is imported an authority to add to 
the confinement or restraint in prison that which is gen- 
erally incident to it — " hard labour ;" in other words, that 
" iuiprisonment " there means restraint by continement 
in a pris n, with or without its usual accompaniment, 
"hard laliour." 

The Provincial Legislature having thus tlie authority 
to impose imprisonment with or without hai'd labour, 
[134] had also power to delegate similar authority to the 
municipal body which it created, called the License Com- 
missioners. 

It is said, however, that the Legislature did not dele- 
gate such powers to the License Commissioners, and that 
therefore the resolution imposing hard labour is void for 
excess. It seems to their Lordships that this objection is 
not well founded. 

In the first place, by sect. 5 of the Liquor License Act, 
the Commissioners may impose penalties. Whether the 



argued in the Court of A|)i)eiil witli 
the ca^e of Reijina v. Hodf/r. The 
Court of ApiK'al held that the Pro- 
vincial Legislature could impooe hard 



labour as a imnishnient. See Do- 
minion Sessional Pai)er8 of 1884, 
Sessional Paper 30, p. 48.] 



PRIVY COUNCIL. 



165 



See Do- 

of 1884, 



word " penalty " is well adapted to include imprisonment 1^83 
may be questioned, but in this Act it is so used, for sect. Hoiwe 
62 imposes on offenders against the provisions of sect. 43 THKtirEEN. 
a penalty of 20 dollars or 15 days' imprisonment, and for judgjTent. 
a fourth ofFiaice a penalty of imprisonment with hard 
labour only. " Penalty " here seems to be used in its 
wider sense as equivalent to punishment. It is observa- 
ble that in sect. 59, where recovery of penalties is dealt 
with, the Act speaks of " penalties in money." But, sup- 
posing that tlie " penalty " is to be confined to pecuniary 
penalties, those penalties may, by sect. 70, be recovered 
and enforced in the manner and to the extent, that by- 
laws of municipal councils may be enforced unde»' the 
authority of the Municipal Act. The word " n ;over " 
is an apt word for pecuniary remedies, and the word 
" enforce " for remedies against the person. 

Turning to the Municipal Act, we find that, by st.'ct* 
454, municipal councils may pass by-laws for inflicting 
reasonable fines and penalties for the breach of any by- 
laws, and for inflicting reasonable punishment by im- 
prisonment, with or without hard labour, for the breach 
of any by-laws in case the fine cannot be recovered. By 
sects. 400 to 402 it is provided that fines and penalties 
may be recovered and enforced by summary conviction 
before a Justice of the Peace, and that, where the prose- 
cution is for an offence against a municipal by-law, the 
Justice may award the whole or such part of the penalty 
or punishment imposed by the by-law as he thinks fit ; 
and that, if there is no distress found out of which a 
pecuniary penalty can be levied, the Justice may commit 
the offender to prison for the term, or some part thereof, 
specified in the by-law. If these by-laws are to be en- 
[135] forced at all by fine or imprisonment, it is necessary 
that they should specify some amount of fine and some 
term of imprisonment. 



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PRTVT COUNCIL. 



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1883 

HODOK 

I'. 

Thk Quken. 
jcdgment. 



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The Liquor License Act then gives to the Commission- 
ers either power to impose a penalty against the person 
directly, or power to impose a money penalty, which, 
when imposed, may be enforced according to sects. 454 
and 400-2 of the Municipal Act. In either case, the 
Municipal Act must be read to find the manner of en- 
forcing the penalty, and the extent to which it may be 
enforced. The most reasonable way of" construing statutes 
so framed is to read into the later one the passages of the 
former which are referred to. So reading these two 
statutes, the Commissioners have the same power of en- 
forcing the penalties they impose as the Councils have of 
enforcing their by-laws, whether they can impose penal- 
ties against the person directly, or only indirectly as the 
means of enforcing money penalties. In either case, their 
resolution must, in order to give the magistrate jurisdic- 
tion, specify the amount of punishment. In either case, 
their resolution now under discussion is altogether within 
the powers conferred upon them. 

Their Lordships do not think it necessary or useful to 
advert to some minor points of discussion, and are, on 
the whole, of opinion that the decision of the Court 
of Appeal of Ontario should be affirmed, and this appeal 
dismissed, with costs, and will so humbly advise Her 
Majesty. 

Judgments in Ontario Court of Appsal. 

[Reported 7 App. Rep. ^6.] 
SrnAooE, C. J. : — 

[261] The only question is upon the conviction of the defendant, 
who was licensed as a tavern-keeper in the city of Toronto, for allow- 
ing a billiard table to be used in his tavern after the hour of seven 
o'clock at night on Saturday, the 7th of May, 1881, in contraven- 
tion of a resolution and enactment of the Board of License Com- 
missioners of the city. 

The selling of beer to a boy by the defendant is not in question. 



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The reasons of the defendant against the conviction are : 1st, that \8i<3 
the Legislature of Ontario had not power to enact such regulations rr" ~'. 
as were enacted by the Board of Commissioners, and to create v. 

offences and annex penalties for their infraction ; and, 2nd, that if ^ h^i^ekn. 
the Legislature had such power, it could not delegate such power to C.A.,Ontiirio. 
the Board of Commissioners. Spragge, C.J. 

[t was upon this second ground that the judgment of the Court 
of Queen's Bench, now appealed from, is rested. 

I do not propose to attempt a definition of the powers conferred 
by tlie Imperial Parliament, by the B. N. A. Act, upon the Dominion 
Parliament and the Provincial Legislatures respectively. They each 
derive their powers from the same source ; and the power to make 
laws in relation to the several classes of subjects, legislation ujion 
which is, by the Imperial Act, committed exclusively to the Pro- 
vincial Legislatures is as large and complete as it is in the classes of 
subjects committed by enumeration of subjects to the Dominion 
Parliament. The limits of the subjects of jurisdiction are prescribed ; 
but within those limits the authority to legislate is not limited. I 
cannot do better than to quote here the language of Lord Selhorne 
in Regina v. Burah, (1). Speaking of the Council of the Governor- 
General of India, upon whicli legislative powers were conferred by 
the Imperial Parliament, he says : "The Indian Legislature has 
powers expressly limited by the Act of the Imperial Parliament 
which created it, and it can, of course, do nothing beyond the limits 
[252] which ciicumscribe these powers. But, when acting within 
those limits, it is not in any sense an agent or delegate of the Impe- 
ri:d Parliament, but has, and was intended to have, plenary powers 
of legislation, as large, and of the Fame nature, s s those of Parlia- 
ment itself." 

Looking at the classes of subjects legislation upon which ia com- 
mitted exclusively tc the Provinces, it is very apparent that it was 
intended that their Legislatures should possess very large and ample 
powers in relation to all subjects of a local and domestic nature. 
Tliey had pos essed plenary powers upon these subjects before con- 
federation ; and the general scheme of confederation appears to have 
been to leave to them the plenary control of these subjects. They 
were, under the Act, Legislatures in regaid to theio subjects in the 
true and full sense of the term. This is the more apparent from the 
use of the words "exclusive" and "exclusively," (and they are 

(1) 3 App. Gas. 889, 904. 






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1883 used repeatedly) in the Imperinl Act. Other legialntion upon these 

"■^ classes of subjects is excluded. No alteration, no amendment, no 

,.. perfecting of any measure fiillin<^ within these classes of subjects. 

The Cii'KKN. gj^n ]jQ niade by any authority outside of the Provincial Legislature. 

C. A., Ontario. It is therefore necessary that the Provincial Legislature should 

SurutTKe" C J Possess plenary power in relation to all these subjects, to change, 

amend, repeal, re-enact, and in short to deal with them as change 

of circumstances or other exigencies might render proper ; the pro- 
priety of changes in any shape made, not to be challenged by any 
other legislative authority, nnd the power to make them being 
limited only by the rule, whether the law making the change is 
within the class of subjects legislation upon which is assigned to 
Pr )vincial Legislatures. 

The H. N. A. Act confers a constitution ; distributively as to 
powers of legislation ; and with those p avers necessarily all that was 
needful to m ike those powers efl'ectual. This is well put by Mr. 
Oooley, in hii work in Constitutional Limitations, 4th ed., p. 77 : 
"The implications fiom the provisions of a constitution are some 
times exceedingly important, and huve large influence upon its con- 
[253] structiou. In regard to the Constitution of the United States* 
(which it will be remembered has limited and enumerated powers — 
Story's Constitution of United States, sec. 426),. the rule has been 
laid down that whore a general powor'is conferred, or duty enjoined, 
every particular power necessary for the exercise of the one or the 
performance of the other, is also conferred. . . . Under eveiy 
constitution implication must be resorted to, iu order to carry out 
the general grants of power. A constitution cannot, from its very 
nature, enter into a minute specitication of all the minor powers, 
naturally and obviously included in, and flowing from, the great and 
important ones wliich are expressly granted. It is therefore es- 
tablished, as a general rule, that when a constitution gives a general 
power, or enjoins a duty, it also gives by implication every parti- 
cular power necessary for the exercise of the one or the enjoyment 
of the other. " 

We have the high authority of Vattel upon the same point. He 
says, Book 2, c. 17. ss. 285, 6 : " The most important rule in cases of 
this nature is, that a constitution of government does not and can- 
not, from its nature, depend in any great degree upon mere verba 
criticism, or upon the import of single words. Such criticism may 
not be wholly without use ; it may sometimes illustr.ite or unfold 
the appropriate sense ; but unless it stands well with the context and 



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siibject-matter it must yield to the latter. While then we may well 1883 

ivsort to the tiioaiiiiig of singlo words to assist our inquiries, we 

, , , .... - H()ii(;k 

should never forget tiiat it is an instrument of government we hto ,., 

to construe ; and a* has been already stated, tlmt must ho the truest Thk <.jlkkn. 

exposition which hest liRrmonizes with its design, its objects, and its C.A., Onturio. 

genenil structure." (1) Spra^ C..T. 

One other consideration presents itself, which is, to my mind, 

conclusive. This matter of licensing and of the regulation of places 

iviid persons licensed pertains to municipal institutions, and is iiiure- 

over of a local nature. Now, the making of 1 iws in relation to both 

tlii'se subjects being committed exclusively to the Provincial Legis- 

[2o4] latures, and legislation by any other p' .ver being tloreby 

e.xdudeil, it follows that th« B. N. A. Act operates to withdraw from 

legislative control by aui/ power or body whatever the licensing and the 

regulation of places and persons licensed ; powers in regard to which 

they had theretofore un<iuestionably exercised. The effect in that case 

would be more and other tlian a distribution, of legislative power, it 

would be an extinction of legislative power in regard to subjects wliich, 

up to confeileration, had been subjects of Provincial legislation. 



(1) [The passage here cited is from 
Story on the Constitution, sect. 455, 
but in a foot note Story' refers to 
Vattel, Book 2, c. 17, ss. 285, 286— 
The sections of Vattel referred to are 
as follows] : 

Sect. 285: " It frequently happens 
that with a view to conciseness, 
people express imperfectly, and with 
some degcee of obscurity, things 
which they suppose to be sufficiently 
elucidated by the preceding matter, 
or which they intend to explain in 
the sequel : and moreover, words and 
expressions have a different force, 
sometimes even a quite different sig- 
nification, according to the occasion, 
thiir connection and their relation to 
other words. The connection and 
train of the discourse is therefore 
another source of interpretation. We 
must consider the whole discourse to- 
gether, in order perfectly to conceive the 
sense of it, and to give to each expres- 
sion, not so much the signification 
which it may individually admit of, 
as that which it ought to have from the 



context and spin't of the discourse 
.S'lch is the maxim of the Roman 
law, incivile est, nisi tota lege per- 
specta, una aliqua particula ejus pro- 
posita, judicare vel respondere. 

Sect. 286: "The very connection 
and relation of the things in question 
helps also to discover and establish 
the true sense of a treaty, or of any 
other piece. The interpretation ought 
to be made in tuchamantierthat all 
the parts may appear consonant to each 
other, — that what follows may agree 
with what preceded, — unless it evi- 
dently appear, that, by the subsequent 
clauses the parties intended to make 
some alteration in the preceding ones. 
For it is to be presumed that the 
authors of a deed had an uniform and 
steady train of thinking,— that they 
did not aim at inconsistencies and 
contradictions, — but rather that they 
intended to explain one thing by 
another, — and, in a word, that one 
and the same spirit reigns through- 
out the same production or the same 
treaty " 






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1883 I will presently consider the question whether the imposing dutien 

and conferring powers imposed by the Act of 1875-6 upon License 
Commissioners was a new delegation of authority not contemplated 

by tlio B. N. A. Act ; but before doing so it will be well to consider 

C. A. , Ontario, this power to delegate, which is denied to the Provincial Legislature 
Spragge C.J. by the judgment of the Court of Queen's Bench. Reginav. iiura/»(l), 
is certainly no authority for the denial of such power. Lord Sel- 
bdiiie gives his idea of the kind of power that cannot be delegated, 
when he S'lys, at p. 905, that "the Governor-General in Council 
could not, by any form of enactment, create in India, and arm with 
general legislative authority, a new legislative power, nut created or 
authorized by the Councils' Act." But no part of his judgment 
countenances the idea that a legislative body niny not delegate to 
others authority to make rules, orders, by-laws, or whatever may be 
necessary to carry into effect the enactments of the Legislature itself 
Sir James Stephen, in his argument in the Burah Case (1), gives 
several instances of what he c.dls conferred discretion, and delegation 
of authority. It would iii<leed be dilficult to conceive any' more 
decided instances of delegation of authority, and that quasi legislative 
autliority, than is to be found in the last as well as previous Muni- 
cipal Institutiiins' Acts passed by the Legislature of United Canada 
befire confederation ; and it is to be remefhbered that that Legis- 
lature had no more power to delegate power upon that subject of 
legislation, than had the Legislature of Oiitari> after confederation 
[255] Besides the Municipal Institutions' Ac^, the Attorney- 
General in his argument gives us several instances of legis- 
lative delegation of authority by the Canadian Legislature 
before confederation. One is the authority given to the Governor- 
in-C uncil by sects. 9 and 10 of the Public Lands' Act, 23 Vict. 
c. 2 ; another is the authority given by the Grammar Schools' 
Act, 22 Vict. c. 63, to the Council of Public Instruction, to make 
^ rules and regulations for the organization and government of 

grammar schools ; and there arc besides the frequent instances of 
power delegated to the judiciary to make rules and orders of 
Court. I may instince the power delegited by 12 Vict. c. 6-4, to 
• the Court of Chancery. After enumerating a number of subjects in 

respect of which this power is given, this general power is delegated, 
" to make such general orders from time to time as the Court may 
deem expedient in relation to every other matter deemed expedient, 



if 



(1) 3 App. Cas. 889. 



PRIVY COUNCIL. 



171 



for better attaining the ends of justice and advancing the remedies 188.S 
of suitors ; with power from time to time to suspend, repeal, vary, '~^ 

or revive Huch orders ; " imd the only restriction upon the power so j.. 

confuired was, ihtit no such order should have the effect of altering TheQieln. 
the jiiinciples or rules of deciNion of the Court. We know also that C.A., Ontario, 
tlio Imperial Parliivnient has, fri>in time to time, delegatetl lirge Spratrtre C •! 

powers of the like nature to the judiciary ; and in the recent Judica- 

lure Acts, powers that aro essentially h'gislative in their character. 

My conclusion is, that it cannot be correctly laid down as a pro- 
position of law that a Legislature cannot delegate its powers, to 
other bodies, or to boards of officers created by itself, in order to the 
ciinying out its legislation upon particular subjects. It is not nect>»s- 
ary to go further. It has been the course of legislation to do this 
in EngLmd, an I in Ounala ; and also in the neighbouring Republic, 
and it is manifest that a contrary doctrine would cripple legislation 
to a very serious extent. 

It is important to bear in mind thut the Imperial Parliament, in 
[256] coi.imittmg to the Provincial Legislatures the making of law.s in 
relation to municipal institutions, committeil to them as a subject of 
Ii'gisliition that which was as it then stood and had stood for a 
number of years, wholly a subject of delegated power from the 
general Legislature. The power was conferred in as broad jnd 
comprehensive terms as possible " to make laws in relation to." 
That necessarily imported ex vi termini power to change the laws in 
relation to that subject ; and as long as the changes made were 
cli iiiges only in municipal institutions they were within the power. 
Ill the then Province of Upper Canada at the d ite of confederation 
township councils, county councils, city councils, boards of police 
commissioners, were all parts of the machinery which, to take as an 
instance the county of York, constituted a municipal institution. 
Great changes might be made in all these pieces of machinery : their 
powers and duties might be ch .ng d ; some parts might be left out, 
e. (jf.town.ohip councils, or county councils, or boards of commis- 
sioners, as making the nmchinery too cumbrous or too complicated, 
or for any other reason ; and the powers and duties exercised by 
tliosti left out might be committed to those remaining, or to some 
new boards or other pieces of machinery substituted for them. I 
c nnot see how it could be ultra vires the Provincial Legislature to 
make all these changes provided they were changes only in relaiion 
to municipal institutions. 

In the judgment of the Court below it is said : " Our Legislature 



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1883 hau certainly, (lelegfttnl to the Board of Licenno ComniiHsionerB the 

~^ creation of certain new restrictions, and limitations on individual 

HolKJE 

,.. liberty of action. ... It Hconis very dithcult, in our judgment, 

I H E 'ji KE.v. t„ i„ii,i ti,jjt ^ii,, (•(inft'dciation .\ct gives any such power of dele- 
r. v., (»ntari<i. gating authority, tirst of creating a quasi ()H'enco,and then of punishing 
SiuiiKge C.J. '' ^'y ''"*' """ i"'I'r''^<>"uient." If, in the ])a8sago tirst rjuoted it is 
meant (as I tiiink it must he meant i that the Provincial Legislature of 
[•257] Ontario lias delegated to the Board of License Commissioners 
the power of creating new restrictions and limitations on individml 
liberty of action, not possessed, i. e., the power not po.sscssed, by 
comjionent parts or a component jiart of nmnicip d institutions, I am 
unable to assent to the proposition. A short review of the legis- 
lation on the subject as it stood at the date of confederation, and as 
it has been altered since, within the jiowers conferred by the con- 
federation Act, will shew this. 

By the Municipal In.stitu.ions' Act of the late Province of Canada, 
passed in 18()(), and which applied to Upper Canada only, different 
provisions are made as to the licensing of taverns and shops, and 
tlie licensing of billiard tables. Power to make by-laws for the 
licensing of taverns (licenses to shops not being in question, I will 
contino myself to the licensing of taverns and of billiard tables) was 
conferred upon the councils of townships, towns, and incorporated 
villages, and in cities upon the commissioners of police, and for 
regulating the houses or places licensed ; and power to make by- 
laws for licensing, regulating, and governing all persons keeping 
billiard tables for hire or gam, in a house or place of public entertain- 
ment or resort, was conferred upon councils of townships, cities, 
towns, and incorporated vilhges. And these powers in relation to 
billiard tables have remained unchanged in the same bodies. 

Under the same Act, 1866, Municipal Councils had power to pas-* 
by-laws for inflicting reasonable fines and penalties, not exceeding 
850, for breach of any of the by-l.aws of the corporation ; and fur 
reasonable punishinent by imprisonment, with or without hard 
labour, for such breach in case of non-payment of fine and ctsts, 
and in the absence of means of distress. 

So far, power was not given to police commissioners in cities to 
enforce the by-laws which they wer« authorized to make. They had 
the same power to make by-laws for the licensing and the regulation 
of taverns as the Municipal Councils had, but not the power to 
[268] make by-laws for enforcing their regulations ; and the law 
stood thus until the Provincial Act of 1869, 32 Vict. c. 32, was 



I'UIVY CorNflL. 



173 



passed. This Act Cdiiferred ujioii cnniinissiniu'ra of luilioo in cities IS«3 

till' same powur uf iiuikiiiK I)y-Iaw8 to fiifon-u tlit-ir by-laws in rela- ~ 

.... 11-, I , 1 HOIIGK 

tioii til tlio hconsingantl irgulalinii of tavornaa» was already ii(i8.HU8Hed r. 

liy the Miiiiiciiml Cmincils. Tlio Act did nut cnnfer nixm tlie com- rnK <i\. kkx. 

iiii.s,sionur8 an nnliniited riglit tn name the puni.thment for infraction C.A., OntHiiu. 

of tliuir by-laws, but to attach iienalties for their infraction in the y.,rngg«', ('..I. 

Biuii-' manner and to tlie extent that by-laws of city councils might 

bo enforced under the Mnnicipal Act of 180(5 ; thus placing the 

coiiiniissioners of police in cities upon the '<ame footing in all respects 

ii8 regard.^ the licensing and regulation (jf taverns h.s the councils ot 

uuinicipal bodies other than cities, as was evidently intended by the 

Act of 18(>(5. 

The Act of 1H74, which related only to tavern and shoj) licenses. 
niJide no diflference in this respect. It re-en.acted in substance the 
linivisions of the Act of 18()(! as to the licensing and regulating of 
tavern and shop licenses, etc. ; it made it a matter of legisia^i.e 
enactment that in all places where into.\icating liquors may be uuld 
no sale or other disposal 'hereof should take place between 7 p. ui. 
(Ill Saturday and G a. m. on tiie following Monday ; adding peualtit.- 
t'di' the infrac n of this provision. 

The Act of 1875-G, by which the Board of Lic>'nse Commissioners 
was constituted, transferred to that body all powers and duties 
C'liiferred and imposed upon the connnissioners of police and 
Municipal Councils, respe-.tively, by the Act of 1874 ; and that body, 
on the 25th of April, 1881, by what it calls a resolution, enacted 
that no licensee of a tavern should inter alia, allow a billiard table to 
be used therein during the time prohibited by the Liquor License 
A.t — the Act of 1875-0— or by the resolution then parsed ; and it is 
fur allowing billiards to be played in contravention of this resolution 
or enactment that the defendant has been convicted. 

[269] I do not myself entertain any doubt as to the power of the 
Irovincial Legislature to make the change made by the Act of 1875-6 
in the municipal law as it then stood. I think it is to be regarded 
as only a change in the machinery by which the municipal institu- 
tions of the Province had theretofore been worked ; and as the power 
to make laws in relation to municipal institutions was conferred 
upon th<it Legislature by the confederation * ct, it clearly, in my 
ju igment, had the power to make that change. 

If the change was intra vires the license commissioners had the 
same power to make by-laws in relation to the licensing of taverns, 
and in regard to " regulating" licensed taverns, as, under the Act 






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1883 of 1866 and the other Art) to which I have referred, was possessed 

"^ by municipal councils and commissioners of police, respectively. I 

,•. think it very clear, and I do not indeed understand it to be denied, 

IH E (jC EEW. ^jj^j. ^]^0^Q bodies nad power, under their authority to make by-laws 

C. A., Ontario, for declaring the terms and conditions required to be complied with 

Spragge, C.J. ^y licensees of taverns and for regulating licensed taverns, to pre- 

scribe hours during which the licensee should not permit billiards to 

be played in his tavern. There are a number of American cases 

upon the subject which are collected by Mr. Dillon in his work on 

Municipal Corporations, under the head : *' Authority Delegated to 

Municipalities." I think it too clear to need the authority of decided 

cases. I will, however, refer to the judgment of Baron Martin in the 

Attoniey-General v. Radloff (1) ; and to the judgment of our Court 

of Queen's Bench in Kcgina v. Boardmun (2). 

So far as to the delegation of power to create restrictions and lim- 
itations on individual liberty of acti 'n. The quasi offence created 
is the contravention of the jegulations made by by-laws as to the 
hours during which games of billiards, ba>;atelle, and games of the 
like description may be played in taverns. 

Then as to the delegation of power to boards < f commissioners of 
police arid the transference of tliat power to bonrds of license coni- 
[260] missioners, to make by-laws for attaching penalties to the in- 
fraction of tlu'ir by-laws in relation to the licensing and the regula- 
tion ef taverns. I have already observed that the power conferred 
was limited to that already possessed by municipal coujicils. Still it 
must be conceded that it was th(^ delegation of a power to impose 
tines to a limited amount ; and in case of non-payment, and tlie 
absence of distris-s, to imprison for a limited period, i. e., not 
exceeding twenty-one d<ays ; and the question is, whether this falls 
within the power conferred of making laws in relation to municipiil 
institutions and clause 16 of sect. 92 of the confederation Act ; and 
this appears to me the only point presenting any lUfliculty in the 
case. 

Amon,L{ the subjects in relation to which exclusive power to make 
laws is, by sect. 92 of the confederation Act, committeil to the Pro- 
vincial Legislatures is this, numbered 15 : " The imposition of pun- 
ishment by fine, penalty, or imprisonment for enforcing any law of 
the Province m ide in relation to any matter coming within any of 
the classes of subjects enumerated in this section." What the Pro- 

(1) 10 Ex. 84, 96. (2) 30 U. C. Q. B. 663 ; ante vol. 1, p. 670. 



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vincial Legislature enacted by sect. 38 of the Act of 1869 was in 1883 

substance this : tiiat licensees of taverns in cities should be punish- ^""^ 

alile for breach of by-laws made by commissioners of police, in the ^. 

manner and to the extent that they were punishable for breach of Th k Ql ken. 
by-laws in respect of the same subject matter made by municipal C. A., Ontario, 
councils. The commissioners, it is true, were authorized to make gpragcre C.J. 

by-laws " attaching penalties for the infraction thereof," but that 

power was expressly limited to the power conferred upon other 
bodies having' the same powers in regard to licensing. Suppose 
sect. 38 had been silent as to by-laws attaching penalties, and had 
enacted only that licensees of taverns in cities should be subject to 
the same puni^^hment for breach of by-laws made by commissioners 
as licensees in other municipalities are subject to for breach of by- 
laws made by councils, Wv)uld such an enactment be ultra vires ? It 
was a latv of the Province made in relation to municipal institutions, 
enacting that by-laws made by bodies which, at the date of confed- 
eration, were component parts of municipal institutions, and [:2(jl] 
with power to make these by-laws, should be enforced ; and enacting 
how they shall be enforced, viz.: in the manner and to the extent 
in which by-laws of councils may be enforced. It would be only 
enacting, in another shajje, that licensees of taverns infringing these 
b) -laws should be punishable by fine, etc., describing the punish- 
ment as in the Act of 1866. I cannot think that such an enactment 
would be ultra vires It would be within all the conditions of No. 
15 of sect. 92. Is it then less a law of the Province that is enforced 
by this enactment because, in addition to limiting tlie punishment, it 
requires that it shall be deiined by by law. That indeed '3 the real 
effect of the words used. The power of the police or other magis- 
trate having cognizance vi the ofl'ence would be larger in the inflic- 
tion of punishment without the requirement that by-laws "to attach 
penalties " should be passed, for without such provision he would 
be limited only by the Act of 18U6, while with that provision his 
power is limited both by the Act and the by-laws, as it ii clear that 
the by-law could not attach penalties beyond those authorized by 
the Act. The conviction then, in such a case, would bo for breach 
of a by-law deriving its authority from the Act of 1866, amended, 
within the power of the Legislature, by the Act of 187r)-6 : and the 
conviction and punishment are, under the authority of the Act of 
18t)9, lor an oll'once against the provincial law of Ontario. 

There is, moreover, this very important consideration, that if an 
infraction of tavern license by-laws made by Police Commissioners, 



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1833 and then subsequently by License Commissioners, cannot be made 

""^ punishable by provincial legislation, they cannot be made punish- 

,. ' able at all, for they are not infractions of any law other than the 

The (jt'EEN-. ig^yy yf j]jg Province ; and laws of tlie Province in relation to muni- 

O.A., Ontario, cipal institutions can only be enforced by the imposition of punish- 

Siu-affRc" C.J "i^"* under the authority of provincial legislation. My conclusion 

therefore upon both these points is, that the legislation of tl'" ^ i- 

vincial Legislature was intra vires. 

[262j It is, however, matter of surprise and regret that the city 
officials concerned in the information laid against the defendant, and 
its prosecution, should have prosecuted as lor an offence against the 
resolution of the licei.se commissioners, instead of prosecuting for an 
oQVnce iigainst the by-law of the city itself, in relation to the licens- 
ing and regulation of billiard tables. By the Municipal Institutions' 
Act of 18G(5, power was conferred upon the municipal councils of 
cities as well as otiier municipalities, to make by-laws for licensing, 
regulating, and governing all j^crsons who, for hire or gain, keep 
biliard tables, or have a billiard table in a house or place of public 
entertainment or resort ; and for lixing the sum to be paid for such 
license. This power was renewed in the same terms in the iluni- 
cipal Institutions' Act of Ontario 1873, and again in the R. S. O, 
c. 174. 

Under the authority thus conferred, the municipal council of the 
city of Toronto passed by-law No, 477, printed in the appeal book, 
at pp. 6, 7, fixing the sums to be paid for licenses ; and making 
regulations in regard to tlie licensees and the use of their tables ; 
among others this, th.at every licensed billiard-room situate in any 
place of public entertainment or res'>rt, sliall be closed from and 
after the hour of seven on Saturday night, till the hour of six on 
Monday m rning thereafter. And tlie conviction and the evidence 
up')n whicli it was founded, botli shew that every fact necessary to 
shew the defendant an offender against the by-law was proved ; and 
the penalty adjudged against the defendant was within the penalty 
authorized by the same statute for breach of by-laws of corporations. 

If this plain and obvious course had been pursued, the only ques- 
tion that could have arisen would have been, whether the provisions 
of the Municipal Institutions' Act, in force in Upper Canada at the 
date of confedeiation have been abrogated, a question upon which I 
think no reasonable doubt can be entertained. 

We are informed that this is a test case. If by this it is meant as 
a test whether the licensee of a tavern or other place of public enter- 



PRIVY COUNCIL. 



177 



tainment within the description contained in the Act of 1866, [263] 1883 
and being also the licensee of a billiard table within the description ^"^ 
contained in the same Act, is or is not liable to conviction for the act y_ 

for which this defendant was convicted, I am prepared to say that I ThkQuken. 
see no reason whatever for doubting that he id liable to such con- C.A., Ontario. 

miction. Spra^ C.J. 

Whatever doubt may exist as to this conviction is due to the unto- 

ward ingenuity displayed by the city officials in complicating the 
real substantial question between the city and the licensees of billiard 
tables, by the course adopted by them in the charge and the 
prosecution of the offence. 

Burton, J. A. : — 

[272] The questions raised upon this appeal are of great general 
importance, involving as they do the power of the Provincial Legis- 
lature to pass enactments for enforcing their own laws by tine or 
imprisonment, or, assuming them to have the power, their authority 
to delegate it within certain limits to a Municipal Council or other 
local board. 

The duty of deciding upon the validity or invalidity of an Act of 
the Dominion Parliament or Local Legislature by reason of their 
transcending the limits of their legislative power, is one which the 
Courts of this country were seldom called upon to consider before 
the paf=sing of the B. N. A. Act, but questions of the kind have tor 
many years been the subject of discussion and decision in the Courts 
of the United " ^e8, and we can scarcely do better than adopt the 
sound rule established in those Courts, wlien placing a judicial con- 
struction on constitutioniil provisions, which declares, that in case of 
doul)t every possible presumption and intendment will be made in 
favour of the constitutionality of the Act in question, and that the 
Cou.ts will only interfere in cases of clear and unquestionable 
violation of the fundiimental law. 

It must also not be "lost sight of that the powers intended to be 
conferred upon the several Legislatures of the Domini(jn and the 
Provinces were necessarily expressed in very general terms, it being 
foreseen by the framers of the measure that it would be a perilous 
and difficult, if not impracticable task, to provide for minute speciti- 
cations of their respective po.vers, or to declare the means by which 
they should be carried into execution. 

The leading features of the scheme of confederation were that the 
Provinces should have full and exclusive control over their internal 
12 



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PRIVY COUNCIL. 



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HODOE 

V. 

THK QUKEN. 



IS 



1883 [^3] afiairs, and the power to make laws for the general order and 
good government of the Provinces, whilst the like power to make 
laws for the peace, order, and good government of the entire 
Dominion, in relation to all matters not coming within the classes 
C. A., Ontario, of subjects assigned exclusively to the Legislatures of the Provinces, 
Burton J.A. '^^^ given to the Dominion Legislature. 

The powers so granted to the Provincial Legislatures are in some 

respects fully as important as those given to the Dominion, as for 
instance the exclusive power to deal with property and civil rights, 
the administration of justice, and the constitution of the Courts, 
whilst those granted to the Dominion are more national in their 
character, or, to cite the language of the Colonial Secretary in intro- 
ducing the bill, " The real object which we have in view is to give 
to the central government those high functions and almost sovereign 
powers by which general principles and uniformity of legislation 
may be secured in those questions that are of common import to all 
the Provinces, and at the same time to retain for each Province so 
ample a measure of municipal liberty and self-government as will 
allow and indeed compel them to exercise those local powers which 
they can exercise with great advantage to the community." 

But as to each the Imperial Act was intended to define as accur- 
ately as could be done in a constitutional charter, their relative 
powers ; all matters of a local and private nature, including those 
specially enumerated in sect. 92, being given to the Provincial Legi?- 
latures, and the remainder of the legislative powers necessary for the 
peace, order, and good government of the Dominion, including those 
specially mentioned in sect. 91, being considered as general powers, 
and entrusted to the Dominion Parliament. 

The case of Dobie v. The Temporalities Board (1), recently decided 
in the Privy Council, is an illustration of this distinction. The Act 
there in question, passed by the Legis'ature of Quebec, professed to 
deal with a single statutory trust, and interfered directly with the 
constitution and privileges of a corporation created by an Act of the 
[274] late Province of Canada, and having its corporate existence 
and corporate rights in the 1 rovince of Ontario as well as in the Pro- 
vince of Quebec. 

It clearly did not fall within any of the classes of subjects enumer- 
ated in sect. 92, it was not a matter of a local or private nature, an'l 
could therefore only be dealt with by the Dominion Parliament. 

(1) 7 App. Gas. 136; ant'-, vol. 1, p. 351. 



PRIVY COUNCIL. 



179 



Within its range then each has an exclusive power ; the only ca^e 1883 
in which a concurrent power is given is in sect 95, to make laws in ^T^ 

. , , . • ,1 .1, HODOK 

relation to agriculture and immigration, and there it is specially pro- f. 

vided that the Provincial legislation may be overridden by the ThkQuken, 
Dominion Parliament. C.A., Ontario. 

But there are cases in which the power is given generally to the Burton J. A. 

Provinces to deal with a particular subject. Take for instance 

property and civil rights, which in those general terms would 
comprise the power to regulate contracts of every kind, including 
bills of exchange and promissory notes. When therefore we find the 
Dominion entrusted with the exclusive power to legislate upon bills 
and notes, the only way to make thr^ Act consistent is to read this 
as an exception to the general power granted to the Province. So 
again, although the Provinces have exclusive power under sub-sect. 14 
to make laws in relation to the administration of justice in th(. Pro- 
vince, including the constitution, maintenance, and organization of 
Provincial Courts, both of civil and criminal jurisdiction, when we 
find bankruptcy and insolvency mentioned as a subject for the 
exclusive legislation of the Dominion we must necessarily under- 
stand that the organization of an Insolvent Court, and administration 
of justice and proceedings connected with insolvency, are excepted 
from the general words of that sub-section. 

But to that extent only can the Dominion Parliament assume to 
interfere. Reading the powers granted in sect. 92, with the excep- 
tions where they occur in sect. 91, the Local Legislature is absolute 
and supreme over those subject matters with as ample power to legis- 
late in respect of them as the Imperial Parliament, and without any 
possibility of interference by the Dominion Legislature. 

[275] Adopting the same rule of construction, sub-sect. 15 of s ct^ 
92, must, in my opinion, be read as an exception or modification of 
sub-sect. 27 of sect. 91, which vests in the Dominion Parliament the 
[jower to deal generally with the criminal law. 

The powers claimed to be exercised b\ the Provincial Legislature 
in the present case must depend upon the construction to be placed 
on sub-sects. 8, 13 and 16, of sect. 92, for I agree with the learned 
Chief Justice that a right to license an employment does not imply 
a right to charge a license fee therefor, with a view to revenue, 
unless such seems to be the manifest purpose of the power. Th& 
right to restrict parties by requiring a license must be sought for 
under the sections I have referred to, and not under sub-sect. 9, • 

which was passed not for the purpose of conferring the power tO' 



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180 



PRIVY COUNCIL. 



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1883 issue licenses, but to ensble the Provinces by that means to raise a 

■~'~ revenue for provincial, local, or municipal purposes. The onlv 

Hodge * 

y_ power of taxation given by sub-sect. 2, is that of direct taxation. 

Th e Qu ern. Sub-sect. 9 was intended to allow them in this particular ni' de to 

C.A., Ontario, raise a revenue by indirect taxation. 

Burton J. A. '^^® other sections vest in them the power to make laws in relation 

to municipal institutions, property and civil rights, the impo.sition 

of punishment in the manner specified for enforcing any law of the 

Province made in reference to any of the classes of subjects under 

sect. 92, and the general power as to all matters of a merely local or 

private nature in the Province. 

At the time of confederation the Municipal Institutions' Act of 
1866 was in force, and under it the municipal councils were empow- 
ered to pass by-laws and to fix the punishment within certain defined 
limits for their infraction. To the police conimissionershad been trans- 
ferred a power formerly vested in the council to pass by-laws regu- 
lating taverns, and to prohibit the sale of liquors without license, but 
no power was given at that time to the commissioners to enforce the 
performa'ice of these by-laws by tine or otherwise, and by sect. 129 
of the B. N. A. Act, this law was continued in force until repealed 
[270] or altered by the appropriate Legislature. 

It was at that time dealt with by the Parliitment of the Province 
of Canada as coming within what were known as municipal institu- 
tions, the power of dealing with which is now within the exclusive 
jurisdiction of the Provinces ; and it would certainly come within 
the general clause which confers exclusive i^ower on the Provincial 
Legislature to deal wi h matters of a merely local or private nature, 
and does not I'.iU within any of the subjects with which the Doniin- 
inn Parliament lias power to deal, unless, perhaps, by a general 
moa'sure afiectiii^' the whole Dominion, which has not been done. 

We accordingly liiid the Local Legislature dealing with it in 18(50, 
and giving power to the connuissioners to attach penalties for the in- 
fraction of their by-laws in the manner and to the extent that by- 
laws of the City Council might be enforced under the Municipal 
Act of 186G. And the same powers and duties have, as the leavned 
Chief Justice has pointed out, been transferred to the Board of 
License Connnissiouers. 

Before dealing with the question of delegation, can it be supposed 
for a moment that the Imperial Parliament intended to confer upon 
the Local Legislatures power to pass laws without the means of en- 
forcing them ; and yet it was gravely urged in argument that the 



H <i 



PRIVY COUNCIL. 



181 



right to enfo ce them by imprisonment would in each Ciise ilepencl 1883 
upon the will or action of the Dominion Parliament. ^"^ 

Every government which is supreme nnist have the capacity to ,.. 

niiik>> its own conmanils obeyed. The Provincial Legislatures, as I Th e (ju eex. 
have shewn, within tJxeir r.^spective spheres, are absolutely supreme. C.A., Ontario. 
It follows that wherever the Provincial Legislatures have pnwtr to B„rton J. \. 

enact any particular measure, wherever tliey may require anything 

to be done or forborne in carrying out the powers granted to them 
by the Imperial Parliament, they must have of necessity tlie power 
to enft)rce, and we should not look for any express power but for 
[277] tlie fact that the criminal law generally is givcii to the Do- 
iiiiniiiii. Hence it became necessary to give express and exclusive 
power to the Provincial Legislatures to declare acts of disobedience 
cir acts which have a tendencj' to interfere with the [irupose i meas- 
ures to be crimes, and affix such punishments as it deemed proper. 

I incline to agree witli the learned counsel for the defendant that 
tlie otlence here charged comes within the definition of a crime, 
which has been said to be " an act of disobedience to a Law forbidden 
under pain of punishment ;" (1) but it does no*' follow that it must 
fir can be dealt with by tlie Dominion Parliament. 

As I have already pointed out, the statute has to be conjtrued as 
a whole, and where some specific matters are mentioned as within the 
exclusive power of one body, which but for that reference would 
fall within the more general description of a subject matter confided 
to the other, the statute must be read as excepting it from that 
geiitral description. 

If, therefore, it be a crime, the power to punish it is expressly 
excepted from the general power over the criminal law given to the 
Dominion, and vested exclusively in the Province, if it is in)tacrinu* 
cadit qufcstio. 

I come to the conclusion that the Provincial Legislature, and the 
Provincial Legislature alone, has the power to pass laws for the in- 
fliction of penalties or imprisonment for the enforcement of a law of 
the Province in relation to a matter coming with a class of subjects 
with which alone the Province has the right to deal. 

Having this power had they a right to delegate it as they have 
done to this Board of Commissioners ? The learned Chief Justice 
of the Queen's Bench says : " Such a delegation was of course unob- 
jectionable when done by a Legislature of unlimited authority in 

(1) Harris' Principles of the Criminal Law, p. 1, citing from Sir J. Fitz- 
Jamcs Stephens' work. 



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1883 both criminal and civil proceedings," meaning thereby the Le^isla- 

_~^ ture of the old Province of Canada. 

V, [2~3] ^t appears to me that if this be sound law, and I think it is, 

The Qukkn'. j^ furnishes a solution of the question. 
C. A, Ontario. It would soem almost a misapplication of terms to refer to the 
Provincial Legislature as exercising a delegated authority in the 
sense of being an agent or delegate of the Imperial Parliament. The 
Imperial Parliament has the power, no doubt, to pass laws such as 
those passed by the Local Legislature and affecting all Her Majesty's 
subjects in the Province, but it is equally clear that it is a power 
existing in name only, and one which it would never attempt to 
exercise, and therefore the Parliament of the Provincn cannot in 
that sense be spoken of as exercising a delegated autliority. 

It is true that Parliament gave both to the Dominion and to the 
Provinces the constitutions under which we live ; both limited in 
extent, but both giving representative institutions, and giving to the 
Legislaiures elected in the manner therein pointed out, plenary 
powers of legislation within their respective spheres as large and 
ample as those of the Imperial Parliameiit itself. The Legislatures 
so elected have a delegated authority it is true, but it is of the 
same charactt'v as that of the Imperial Parliament, who are collec- 
tively the delegates of the whole people. 

If these are powers which the Imperial Parliament could have 
delegated, then they can equally be so delegated by the Legislature 
of our own Province ; if not, then it is unnecessary to add that they 
cannot be so dealt with by a Provincial Legislature. 

I take the case of Regina v. Burah (1), referred to in the Chief 
Justice's judgment, to be clear auhority for this ; but it is not con- 
clusive as 'o this being a delegation of power which would be within 
the power of the Imperial Parliament. 

In the celebrated case of the Aitomey-General v. SiUem (the 
Alexandra Case), (2), this question was much discussed, and although 
there was a difference of opinion among the Judges, some of them 
holding; that the power was not given by the statute to make the rule 
[279] in question, none of them appeared to entertain any doubt as 
to the right of Parliament so to delegate its authority. Referring 
to the objection, the late Mr. Justice Willes, at p. 609, says: "I think 
that must fail in the mind of anyone who considers the numerous 
instances of a similar delegation within the experience of us all. The 



(1) 3 App. Caa. 



(2) 2 H. & C 431. 



PttIVY COUNCIL. 



183 



course of pleading, for instance, in the Courts which I may call 1883 
Courts of first instance, was always considered to he as much a '~^ 
part of the law of the land as any substantive rule for deter- v. 

mining a right of property, or any other right ; and it was always Th e Qu ken. 
held that such a law could not be changed without the authority of O.A., Ontario, 
Parliament, and yet the noble and learned framerof the Act, known Burton J, A. 

as Parke's Act, the 3 & 4 Wra. 4, c. 42, conferred upon the Judges 

the power, in eflfect, of legislating with respect to such a portion of 
the law of the land. It is true that the power given in that Act 
was subject to the rules being laid for a certain period before Parlia- 
ment. But inasmuch aa Parliament, without the CVown, could not 
make a law — inasmuch as Parliament, constitution>»lly, could not 
give its assent to an Act of Parliamen ^,, simply by having the paper 
upon which the bill was written or printed laid before it, and inasmuch 
as in form and substance the assent of the Crown could only be 
given when both houses of Parliament were present, in effect the 
power of legislating was given to the Judges with respect to such 
portion of the law Now, after referring to such an in- 
stance as that, one la almost ashamed to refer to the numerous cases 
in which towns and other local communities are allowed to deter- 
miud by the voice of a majority whether certain Acs of Parliament 
for local government shall or shall not have power within the limits 
in which the inhabitants reside, and to make amends for referring 
to such an instance, I shall content myself for a proof that the dele- 
gation of legislative power is no objection, with referring to the 
223th" section of the Common Law Procedure Act of 1852, by which 
Her Majesty in Council was authorized to direct that all or any part 
of that Act of Parliament, making very great changes indeed in the 
law, should apply to all or any Court or Courts of Record in Eng- 
land or Wales, and that without any authority of the House of Lords 
or the House of Commons." 

I wish to add that L fail to see any grounds for a distinction iu 
this respect between the powers of a Parliament or Legislature 
acting under the constitution given to us by the B. N. A. Act and 
those confersed under the constitutional Acts of 1791 and 1840, and 
numerous cases are to be found in which those Legislatures delegated 
their authority. 

In my opinion the judgment should be reversed, and this appeal 
allowed. 



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Patteksoit and MorRisoh, J J. A., concurred. 



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184 



PRIVY COUNCIL. 



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1863 

HODGK 

v. 

Q.B., 'Jntariii. 
Hagarty, C.J. 



• 



m: 



. Judgment in the Ontario Court of Queen'.s Bench. 

[Reported 46 U. C. Q. B. UL] 

Haoaiity, C. J. : — 

[145] It was stated to us that the parties desirod to present directly 
to the Court a very important (juestion whether the Local Legislature, 
assuming that it had the power tliemselves to make theiie regulations 
and create tliese offences and ainex penalties for their infraction, 
could delegate such powers to a Board of Commissioners, or any 
other authority outside their own legislative body. 

The R. 8. O. c. 181, sect. 3, appoints a Board of License Commis- 
sioners of three persons. 

Sect. 4. " The License Commissioners may at any time before 
the 1st day of May in each year, pass a resolution or resolutions fur 
regulating," etc. 

[140] (1.) " For defining the conditions and qualifications requi- 
site to obtain tavern licenses," etc. 

(2.) " For limiting the number of tavern and shop licen.ses," etc. 

(3.) On the same subject. 

(4.) " For regulating thf? taverns and shops to be licensed." 

(5.) "For fixing, etc., the duties, powers and privileges of the 
Inspector of Licenses," etc. 

Sect. 5. "In and by any such resolution of a Board of License 
Commissioners the said Board may impose penalties for the infraction 
thereof." 

Sect. 70. *' In all cases where the Board of License Commissioners 
in cities passes a resolution in pursuance of the powers conferred 
upon them by the fourth and fifth sections of this Act, and in and 
by any such resolution, penalties are imposed for the infraction 
thereof, such penalties may be recovered and enforced by summary 
proceedings before the Police Magistrate, etc., in the manner and to 
the extent that by-laws of municipal councils may be enforced under 
the authority of * The Municipal Act,' and the convictions in such 
proceedings may be in the form set forth in sect. 407 of the said last 
mentioned Act." 

37 Vict. c. 32 (1874) sect. 9, O., allowed the Commissioners of 
Police iu cities to pass by-laws much to the same effect as the revised 
Act allows. Sect. 48 gives them power by such by-laws to attach 
penalties recoverable before police magistrates to the same extent 



PRIVY COUNCIL. 



185 



1883 



HODCJE 

V. 

TlIK (^lEEX. 



that by-laws of city councils might be «nt'orced uiuler tho Muiiicii>Al 
Act. 

At the time of confederation the law appears to have been under 
the Act of Canada, 1866 : 29 & 30 Vict. c. 51. 

By Feet. 249 the Conunissionera of Police in cities miu'ht puss by- 'j.B. , On tario, 
laws for granting tavern licenses, and by sub-sect. 2 for declaring the Hagarty, C.J. 
terms and conditions recpiired to be ci>mplied with by applicant.s, 
and the security to be given for obseri'ing the same. 

By sub-sect. 6, for regulating the houses or places licensed. 

By sect. 262, the same body by by-law could appoint License 
Inspectors, and define their duties. 

[147] Sect. 284 emp)wered the city council to pass by-laws to 
prevent the sale or gift of liquor to a child, apprentice, or servant, 
without the consent of a parent or master, etc. 

The statute contains direct provisions and penalties for breach of 
its several provisions respecting taverns, as in sects. 2.'j4 to 2G0. We 
iind no power given by the Act to any other body to create any now 
ollence as to keeping a tavern. 

Sect. 246 allows tlie council to pass by-laws (sub-sect. 6) for in- 
flicting reasonable limited penalties or fines (inter alia) for breach of 
any of the by-laws of the corporation ; and (sub-sect. 8) for limited 
imprisonment for breach of any of the by-laws of the council, where 
the fine is not paid, "except for breach of any by-law or by-laws in 
cities, and tho suppression of houses of ill-fame, for which the im- 
prisonment may be for any period not exceeding six months," etc. 

This Act was amended in the first session of Ontario, .31 Vitt. 
c. 30. In the next session an Act was passed as to tavern licenses, 
32 Vict. c. 32. 

By sect. 6 the Commissioners of Police in cities might pass by- 
laws as to issuing of licenses, etc . ; and by sub-sect. 2 the terms and 
conditions to be observed by applicants were declared. Sub-sect. 6 
regulated the houses or places to be licensed. 

Numerous provisions are contained in the Act to be observed, 
and penalties provided for their infraction. 

Sect. 38 allows the Police Commissioners, when authorized under 
this or any other Act or law, to make by-laws. They shall have 
power by such by-laws to attach penalties for the infraction thereof, 
to be recovered summarily, and in the manner and to the extent 
that by-laws of city councils might be enforced under the Municipal 
Act of 1866. 



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HODOK 
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The Qukkn. 
Q.B., Ontario, 
Hagarty, C.J. 



186 



PRIVY COUNCIL. 



Thifl seems to be the first legislation empowering a Board to 
attach penalties to their by-lawn as to taverns, apart from the powers 
{,'iven to Municipal Councils. 

There was another amendment by 33 Vict. c. 28, not affecting 
this question. 

[148] The license law is further amended by fresh provisions and 
l>onalties being enacted, 3(5 Vict. c. 34, sect. 8, directing the Police 
Comniisnioners to appf>int an officer for the observance and enforce- 
ment of any by-law of the municipality with respect to tavern and 
fihop licenses. 

Tlie Consolidated Municipal Act of 1873, sect. 337, repeats the 
already (juoted provision of the Act 32 Vict. c. 32, sect. 38, as to 
the Board of Commissioners attaching penalties for the infraction 
of their by-laws. 

The Act of 1874 professes to consolidate the Acts as to tavern 
licenses, and 37 Vict. c. 32, sect. 48, repeats the same clause just 
cited. 

39 Vict. c. 26, sect. 1, 1875, declares that ail powers and duties 
conferred on Commissioners of Police and Municipal Councils by 
the 37 Vict. c. 32, shall hereafter exclusively belong to and be 
exercised by a Board of License Commissioners of three pers )ns, to 
be appointed by the Lieutenant-Governor in Council. 

40 Vict. c. 18 makes additional provisions as to the License In- 
spectors and the general regulations of taverns. 

The next legislation is under the R S. O. c. 181, already cited, in 
effect substituting the Board of License Inspectors for the Board of 
Police Commissioners, under the 37 Vict. c. 32. 

An Act of last session, 44 Vict. c. 27, sect. 17, allows an appeal 
from any judgment, quashing a conviction under R. 8. O. c. 181, 
in the option of the Attorney-General. 

It is conceded that these coDvictions are for the breach of certain 
provisions contained in these resolutions, and rest wholly on them 
as creating the liability to penalty and to punishment, and that such 
penalty, etc. , is wholly the creation of such resolutions. We are 
thus brought in face of a very serious queittion, viz., the power of 
the Ontario Legislature to vest in the License Board the power of 
creating new offences, and annexing penalties for their commission. 

Down to the date of confederation we find no such powers given to 
[149J any such Board. Large powers were delegated to municipal 
councils to pass by-laws for various specified objects, and to annex 
fines to a named limit, and penalties of imprisonment for a limited 



.,. |,j 



PRIVY COUNCIL. 



187 



HonoK 

f. 



period for the nonpayment of such penalties. Such a delegation was 18A3 

of course unobjectionable when done by a Leg'«Uture of unlimited 
authority in both criminal and civil proceedings. 

The B. N. A. Act completely re-arranged our constitution and Thk Queen. 
established the Dominion and Provincial Governments with detined Q.B., Ontario, 
powers and dutie fl. Hagaity, C.J. 

The criminal law and procedu e in criminal matters are reserved 
for Piirliiiment. 

In each Province the Legislature may exclusively make laws in 
relation to certain specified matters. Aiiumgst them are Municipal 
Institutions, Shop, Tavern, Auctioneers' and other licenses, in order 
to the raising of a revenue, etc. 

" The Administration of Justice in the Province, iucluding the 
constitution, maintenance, and organization of Provincial Courts, 
both of civil and of crim' i v jurisdiction, and including procedure in 
civil matters in those Coui cs," is provided for. 

" The imposition of punishment by fine, penalty, or imprisonment 
for enforcing any law of the Province made in relation to any matter 
coining within any of the classes of subjects enumerated in this 
section (92) ;" and " generally all matters of a merely local or private 
nature in the Province." 

It seems reasonably clear that all legislative powers throughout 
the Dominion rest wholly on this Federation Act — the work of the 
Imperial Parliament, having unquestioned jurisdiction over the 
Empire of which we form a part. 

In Leprohon v. The Corporation of the City of Ottawa (1) I had 
occasion, with the other Judges in Appeal, to discuss the relative 
positions of the Dominion arid Provincial Legislatures. 

The subject is fully discussed in the Supreme Court, in such cases 
as The City of Fredericton v. Th« Q^leen (2); Valin v. Lamjlois (3); 
[150] Severn v. I%e Qtieen (4) ; Citizens' Ins. Co. v. Parsons (5). 

As we are obliged to hold that our Legislature is not acting under 
an original jurisdiction, but under the special authority given to it 
by the Confederation Act, we have to decide now whether this special 
power has been exercised, or some larger power endeavoured to be 
exercised beyond the grant. 

(1) 2 App, Rep. 522 ; anU, vol. 1, (4) 2 Can. S. C. R. 70; ante, vol. 
p. 592. 1, p. 414. 

(2) 3 Can. S. C. R. 505 ; ante, vol. (5) 4 Can. S. C. R. 215 : ante, vol- 
2, p. 27. 1, p. 284. 

(3) 3 Can. S. C. R. 1 ; ante, vol. 1, 
p. 158. 



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4. 
t 





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188 



PRIVY COUNCIL. 



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I! ( 

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18*<3 Our Legislature has certainly delegated to the Board of License 

Commissioners the creation of certain new restrictions and limita- 

,.. tions on individual liberty of action. 

The (ji-KEN. j,j J{g,|^,,^(^ y^ Bnrah (1) Lord Selborne, at p. 904, says : " Tne 

<^-B., Ontario. Indian Legislature has powers expressly limited by the Act of the 

Haifartv C.J. IJi^pt^riiil Parliament which created it, and it can, of course, do 

nothing heyond the limits which circumscribe these powers. But, 

when acting within those limits, it is not in any sense an agent or 

delegate of the Imperial Parliament, but has, and was intended to 

have, pleiiaiy powers of legishition, as largo, and of the same nature, 

as tliose of Parliament itself." 

This was in reference to an Act of the Indian Legislature, which 
excludes the jurisdiction of the High Court within certain districts, 
which was held not to l)e inccmsistent with the Indifvn Hig'i Court 
Act (Imperial). The 9th sec^. of the Indian Act confei red upon the 
Lieutenant-Governor of Bengal the power to determine whether the 
Act or any part of it should be applied to a certain distr'ct. This 
was held to be conditional legislation, and not a delegation of legis- 
lative power. 

Lord Selborne says, at p. 90o, it leaves " to the Lieu*enant-Gov- 
ernor to sny at what time that change shall take place ; and also 
enabling him, not to make what laws he pleases for that or any 
other district, but to apply by public notitication to that district any 
law, or part of a law, which either already was, or from time t > time 
inigiit be, in force, by proper legislative authority, 'in the other ter- 
ritories subject to his government.' .... 

"The proper Legislature has exercised its judgment as to place, 
person, laws, powers ; and the result of that judgment has been to 
[151] legislate conditionnlly as to all these things. The conditions 
having been fulfilled, the legislation is now absolute. Where 
plenary powers of legislation exist as to particular subjects, 
whether in an Imperial or in a Provincial Legislature, they may (in 
their Lordships' judgment) be well exercised, either absolutely or 
conditionally. Legislation, conditional on the use of particular 
powers, or on the exercise of a limited discretion, entrusted by the 
Legislature to persons in whom it places confidence, is no uncommon 
thing ; and, in many circumstances, it may be highly convenient." 
The distinctions here pointed out are very intelligible. Naming 
an official to fix the time for the operation of a law to commence, or 

(1) 3 App. CaB. 889. 



~^i 



PRIVY COUNCIL. 



18!) 



i:i 



of License 
nd limita- 

Ys: "Ttie 
Act of the 
course, do 
irera. But, 
n agent or 
ntende'l to 
a'.ne nature, 

itnre, which 
in districts, 
Hig'i Court 
red upon the 
whe^ier the 
strct. This 
tion of legis- 

,u*enaut-Gov- 

ce ; and also 

that or any 

district any 

time t ' time 

le other tcr- 

it as to place, 
has been to 
le conditions 
ute. Where 
ar subjects, 
[they may (in 
ibsolutely or 

if particular 
[ustod by the 

lo uncommon 

convenient. 

.le. Naming 
•mmcnce, or 



the area over which it was to extend, must be a very different 1883 

matter from appointing an official to declare what shall be the law, J!""^ 

. , , ,, , .,,..,. ~ Hodge 

and what punishment shall be appointed for its infraction. Oon- r. 

ditional legislation and a delegation of power to another body must TheQceen. 

always be very distinguishable. Q-B., Ontario. 

Assuming that the Legislature can themselves impose these re- Hagarty. C.J. 

strictions, and annex to their violations these penalties, can they ^"~ 

delegate their power, exerciseable in their discretion, to tli3 discretion 

of any person or number of persons outside their assembly ? 

In the words of the B. N. A. Act, has this defendant, by disobey- 
ing the resolutions of the License ^ioard, broken " any law of the 
Province /" He has offended against the regulations by the board 
established for the city of Toronto. The eight or nine cities of 
Ontario may thus have as many widely differing loc?.l regulations as 
to taverns. The Legislature has not enacted any of them, but has 
merely authorized each board in its discretion to make them. 

It seems very difficult, in our judgment, to hold that the Cri>- 
fuderation Act gives any such power of delegating authority, first, 
of cri ating a quasi offence, and then of punishing it by fine or im- 
prisonment. We think it is a power that must be exercised by the 
Legislature alone. 

In all these questions of ultra vires we consider it our wisest 
course not to widen the discussion by considerations not necessarily 
[152] involved in the decision of the point in controversy. 

Wo, therefore, enter into no general consideration of the powers of 
the Legislature to legislate on this subject, but assuiuing their right 
so to do, we feel constrained to hold that they cannot devolve or dele- 
gate their powers to the discretion of a local board of commissioners. 

We think the defendant has the right to say that he has n t 
ofl'enileil against "any law of th. Trovince," and that the convictions 
cannot be supported. 

We perceive that, by the Act of last Session, special power is given 
to the Attorney-General to appeal, if he think proptr, against our 
decision. 

Ahmouk and Cameron, JJ., conci'.rred. 



[See Powell v. Apollo Cumllc Com- 
innii, 10 App. Ctv8. 282, where Sir 
Robert P. Collier, delivering the 
judgment of the Judicial Committee 
iif the Privy Council, after comment- 
ing tm /fcj;. V. Burah, 3 App. Gas. 
HX'J, and Hodge v. The Queen, Bupra, 
says (p. 290) : " These two cases have 



put an end to a doctrine which ap- 
pears at one time to have had some 
currency, that a Colonial Legislature 
is a delegate of the Imperial Legis- 
lature. It is a Legislature restricted 
in the area of its powers, but within 
that area unrestricted, and not act- 
ing as an agent or a delegate."] 



1 
i 



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I 






ffi:uMS 



m 






s^2i>«i 



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! 



190 



PRIVY COUNCIL. 



PRIVY COUNCIL. 



The Attorney-General for Quebec Appellant; 



AND 



! 



m w. 



h 



■ ! i 



Walter Reed Respondent. 

On appeal from the Supreme Court of Ca^iada. 

[Eeported 10 App. Cas. 141.] 

B.N. A. Act, 1867, ss. 65, 1)2, snb-ss. 2, 14r— Quebec Act, 43 d- 44, Vict. 
c. 9 — Powers of Provincial Legislature — Diity upon Exhibits. 

Held, That Quebec Act (43 it 44 Vict. c. 9) which imposed a duty 
of ten cents upon every exhibit filed in Court in any action 
depending therein, is ultra vires of the Provincial Legislature. 

Appeal from an order of the Supreme Court (June 18, 
1883), (1) reversing a judgment of the Court of Queen's 
Bench of Quebec (Nov. 24, 1882), (2) and restoring a judg- 
ment of the Superior Court of Quebec, district of Mon- 
treal (March 10, 1882). (3) 

The order declared that a certain duty of ten cents 
imposed by an Act of the Quebec Legislature, (43 & 44 
Vict. c. 9) on every exhibit produced in Court in any 
action depending therein was not warranted by law, the 
Act imposing it being ultra vires of the Provincial Legis- 
lature. 

The question arose in an action dej tending in the said 
Superior Court, wherein the respondent tendered a pro- 
missory note as an exhibit, and the prothonotary refused 



Present : The Lord CHANCKLLon (Earl of Selbgrnk), Lord FitzGerald, 
Sir Montague E. Smith, and Sir Robkrt P. Collier. 

(1) 8 Can. P. C. R. 408 ; ;w«<, p. 190. (2) Pott, p. 212. 

(3) Post, p. 226. 



PRIVY COUNCIL. 



m 



cents 
[3&44. 
lin any 
iw, the 
Logis- 

\e said 
a pro- 
refused 

212. 



to receive and file it, unless there were affixed to it a law 
stamp of ten cents in payment of the duty imposed by 
the said Act. A rule was thereupon obtained by the 
respondent and served by order of the Court upon the 
appellant to shew cause why the exhibit should not be 
received without a stamp ; with the result as stated above. 
The judgment of the Supreme Court was pronounced by a 
majority of the Judges (Ritchie, C. J., Fournier, Henry and 
Gwynne, JJ., Strong and Taschereau, JJ., dissenting). 

Davey, Q.C., and Glohensky, Q.C. (of the Canadian bar), 
[142] Pollard with them, for the appellant, contended 
that the Act in question was within the competence of 
^he Provincial Legislature. It was passed several years 
70, duly received the assent prescribed by the imperial 
Act in lieu of the former royal assent to Acts of the 
former Province, was never disallowed, and was acted 
upon. The duty imposed was not a fresh one, but was 
identical with the duty of ten cents upon exhibits imposed 
by the Act 39 Vict. c. 8, which was only repealed and re- 
enacted by the Act in question. Its validity appears 
from the following considerations : (a) as imposing " direct 
taxation " in pursuance of the express power given to the 
Provincial Legislatures by the B. N. A. Act, 1867, sect. 92, 
sub-s. 2 ; (b) as relating to the administration of justice 
in the Provinces, under sub-s. 14 of the same section, 
within the meaning of the words there employed ; (c) as 
being under the provisions of sects. 65 and 129, an altera- 
tion of a law in force in the former Province of Canada 
at the union of the Provinces into the Dominion by the 
said Act of 1867. In reference to this last reason for the 
validity of the Act, it was contended that up to and at 
the union Con. Stat, of Lower Canada, c. 109, s. 32, gave 
power to the Governor to impose any duty on exhibits in 
any Court in Lower Canada by Order in Council ; that 



1883 

Attorney- 
General 
OF Quebec 

V. 

Peed. 
Stateme.:t. 






m 




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-M 



MS 






192 



PRIVY COUNCIL. 



1883 

Attorney- 
General 
OK Quebec 

V. 

Reed. 

Argument. 



Jl 

III 



\] 



sect. 65 of the Act of 1867 (compare also sect. 129) made 
such power exerciseable by the Lieutenant-Governor of 
the Province, subject to the Legislature of the Province ; 
that therefore Quebec Act, 39 Vict. c. 8, sects. 1 and 2, 
was within the competence of the Provincial Legislature ; 
and that consequently the Act in question as a mere 
amendment or re-enactment of 39 Vict. c. 8, was equally 
within that competence. 

The respondent did not appear. 

The judgment of their Lordships was delivered by 

Earl of Selborne, L.C. : — 

Their Lordships have considered the argument which 
they have heard, and they have come to the conclusion 
that the judgment appealed from must be affirmed. 

The points to be considered are three : first of all, can 
[143] this charge upon exhibits used in the courts of justice 
of the Province be justified under the 2nd sub-sect, of 
clause 92 of the B. N. A. Act ? Is it a case of direct tax- 
ation within the Province " in order to the raising of a 
revenue for provincial purposes ?" What is the meaning 
of the words "direct taxation ?" 

Now it seems to their Lordships that those words must 
be understood with some reference to the common under- 
standing of them which prevailed among those who liad 
treated, more or less scientifically, such «ubjects before the 
Act was passed. Among those writers we find some diver- 
gence of view. The view of Mill and those who agree 
with him is less unfavourable to the appellant's arguments 
than the other view, that of Mr. McCulloch and M. Littre. 
It is, that you are to look to the ultimate incidence of the 
taxation, as compared with the moment of time at which 
it is to be paid; that a direct tax is —in the Avords 
which are printed here from Mr. Mill's book on political 



PRIVY COUNCIL. 



193 



Is must 
lunder- 
Iho had 
)re the 
diver- 
agree 
mients 
iLittre. 
, of the 
1 which 
1 words 
)litieal 



economy — "one which is demanded from the very persons 
who it is intended or desired should pay it." And then the 
converse definition of indirect taxes is, " those which are 
demanded from one person in the expectation and 
intention that he shall indemnify him.self at the expense 
of another." 

Well now, taking the first part of that definition, can 
it be said that a tax of this nature, a stamp duty in the 
nature of a fee payable upon a step of a proceeding in the 
administration of justice, is one which is demanded 
from the very persons who it is intended or desired should 
pay it ? It must be paid in the course of the legal proceed- 
ing, whether that is of a friendly or of a litigious nature. 
It must, unless in the case of the last and final proceed- 
ing after judgment, be paid when the ultimate termin- 
ation of those proceedings is uncertain ; and from the very 
nature of such proceedings until they terminate, as a rule, 
and speaking generally, the ultimate incidence of sn.ch a 
payment cannot be ascertained. In many proceedings of 
a friendly character the person who pays it may be a 
trustee, an administrator, a person who will have to be 
indemnified by somebody else afterwards. In most proceed- 
ings of a contentious character the person who pays it 
is a litigant expecting or hoping for success in the suit ; 
[144] and, whether he or his adversary will have to pay 
it in the end, must depend upon the ultimate termination 
of the controversy between them. The Legislature, in 
imposing the tax, cannot have in contemplation, one way 
or the other, the ultimate determination of the suit, or 
the final incidence of the burden, whether upon the person 
who had to pay it at the moment when it was exigible, or 
upon any one else. Therefore it cannot be a tax demand- 
ed " from the very persons who it intended or desired 
should pay it," for in truth that is a matter of absolute 

indifference to the intention of the Legislature. And, on 
18 



1883 

Attorney- 

General 

OF Quebec 

V. 

Reed. 
Judgment. 






i 






4 




194. 



PRIVY COUNCIL. 



J 



1883 

Attornkt- 

General 

of qukleo 

V. 

Beed. 
Judgment. 



.^1 





i 

i 
1 


1 




■ 


k 



ii; 'i 



liii 



i ! 



VI 



|i|M: 



the other hand, so far as relates to the knowledge which 
it is possible to have in j, general way of the position of 
things at such a moment of time, it may be assumed that 
the person who pays it is in the expectation and intention 
that he may be indemnified, and the law which exacts it 
cannot assume that that expectation and intention may 
not be realized. As in all other cases of indirect taxation, 
in particular instances, by particular bargains and arrange- 
ments of individuals, that which is the generally presum- 
able incidence ma3'^ be altered. An importer may be him- 
self a consumer. Where a stamp duty upon transactions 
of purchase and sale is payable, there may be special 
arrangements between the parties determining who shall 
bear it. The question whether it is a direct or an indirect 
tax cannot depend upon those special events which may 
vary in particular cases ; but the best general rule is to 
look to the time of payment, and if at the time the ultimate 
incidence is uncertain, then, as it appears to their Lord- 
ships, it cannot, in this view, be called direct taxation 
within the meaning of the 2!nd sect, of the 92nd clause of 
the Act in question, still less can it be called so, if the 
other view, that of Mr. McCulloch, is correct. 

That point, which is the main point, and was felt to be 
so by Mr. Davey in his very able and clear argument, 
being disposed of, the next question, upon the terms of 
the same section of the same Act, is that which arises 
under sub-s. 14. One of the things which are to bo 
within the powers of the Provincial Legislatures — within 
their exclusive powers — is the administration of justice 
in the Province, including the constitution, maintenance, 
and organization of Provincial Courts, and includinf; the 
procedure in civil matters in the Courts. Now it is not 
[145] necessary for their Lordships to determine whether, 
.f a special fund had been created by a Provincial Act 
for the maintenance of the administration of Justice in 



PRIVY COUNCIL. 



195 



the Provincial Coujrts, raised for that purpose, appro- 
priated to that purpose and not available as general 
revenue for general Provincial purposes, in that case 
the limitation to direct taxation would still have been 
applicable. That may be an important question which 
will be considered in any case in which it may arise ; 
but it does not arise in this case. This Act does not 
relate to the administration of justice in the Province ; 
it does not .provide in any way, directly or indirectly, for 
the maintenance of the Provincial Courts ; it does not 
purport to be made under that power, or for the perform- 
ance of that duty. The subject of taxation, indeed, is a 
matter of procedure in the Provincial Courts, but that is 
all. The fund to be raised by that taxation is carried to 
the purposes mentioned in the 2nd sub-section ; it is made 
part of the general consolidated revenue of the Province. 
It, therefore, is precisely within the words " taxation in 
order to the raising of a revenue for Provincial purposes." 
If it should greatly exceed the cost of the administration 
of justice, still it is to be raised and applied to general 
Provincial purposes, and it is not more specially appli- 
cable for the administration of justice than any other 
part of the general Provincial revenue. 

Their Lordships, therefore, think that it cannot be 
justified under the 14th sub-section. 

With regard to the third argument, which was founded 
upon the 65th section of the Act, it was one not easy to 
follow, but their Lordships are clearly of opinion that it 
cannot prevail. The 65th section preserves the pre- 
existing powers of the Governors or Lieutenant-Governors 
in Council, to do certain things not there specified. That, 
however, was subject to a power of abolition or alteration 
by the respective Legislatures of Ontario and Quebec 
with the exception, of course, of what depended on Im- 
perial Legislation. Whatever powei's of that kind existed,. 



1883 

Attoenkt- 

Genkbal 

of qubbko 

V. 

Keed. 
Judgment. 




'-i- 1 






Wil 






M 



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i''' 






li 

if 

! ! 


■\ 

li 
1 

'; '1 
1 1 



1883 

Attorniy- 

General 

OF Quebec 

r. 

Reed. 

Judgment. 



196 



PRIVY COUNCIL, 



the Act with which their Lordships have to deal neither 
abolishes nor alters them. It does not refer to them in 
any manner whatever. It is said that, among those 
powers there was a power, not taken away, to lay taxes 
of this very kind upon legal proceedings in the Courts, 
[146] not for the general revenue purposes of the Pro- 
vince, but for the purpose of forming a special fund, called 
" the Building and Jury fund," which was appropriated 
for purposes connected with the administration of justice. 
What has been done here is quite a different thing. It is 
not by the authority of the Lieutenant-Governor in 
Council. It is not in aid of the Building and Jury fund. 
It is a Legislative Act without any reference whatever to 
those powers if they still exist, quite collateral to them ; 
and, if they still exist, and if it exists itself, capable of 
being exercised concurrently with them ; to tax for the 
general purposes of the Province, and in aid of the general 
revenue, these legal proceedings. 

It appears to their Lordships that, unless it can be 
justified under the 92nd section of the B. N. A. Act, it 
cannot be justified under the 65th. 

Their Lordships must, therefore, humbly advise Her 
Majesty to dismiss this appeal. 



Jri»GMEXT,s IN Supreme Court of Canada. 



lii I.I 



[licporUd 8 Can. S. C. R 408.] 

Ritchie, C. J. : — 

[415] In 1875, the Legislature of the Province of Quebec, by the 
Act 3d Vict. c. 8, for the first time imposed a tax of ten cents on 
the filing of every exhibit in a cause. This tax, payable by means 
of stamps, was to form part of the consolidated revenue of tlie 
Province of Quebec (sects. 1 and 2). 

This Act was repealed by the 43rd & 44th Vict. c. 9, and the 
same tax of ten cents on filing of exhibits was re-imposed (sect. 9). 



PRIVY COUNCIL. 



197 



Attorney- 
General 

OF l^UEBKO 

V, 

Reed. 

Sup. C, 
Canada. 



Althoui^h this Act does n t expressly declare that this tax shall jggy 
form part of the consolidated revenue of the Province, as the 
repealed statute (39th Vict. c. 8) did, yet it enacts that all the 
duties therein mentioned shall be deemed payable to the Crown 
(sect. 3, sub-sect. 2), and they necessarily fall under the provision 
of 31st Vict. c. 9, sect. 3, Avhich declares that all revenue wbatcvtv 
over which the Legislature of the Province has power of appropria- 
tion, shall form one consolidated fund to be appropriated for the Ritchie, C. J 
public service of the Province. 

This special tax has, therefore, been imposed since the B. N. A. 
[416] Act by the Legislature of the Province of Quebec, to form 
part of the cons ili'lated revenue of the Province. By the B. N. A. 
Act, 1867, sect. 92, sub-sect. 2, the Legislature of each Province is 
authorized to raise a revenue for Provincial purposes by means of 
direct taxation, and from the other sources, such as those mentioned 
in sub-sects. 5, 10 and 15, which have no application to the present 
case. 

To the Dominion Parliament is given the right to raise money by 
any mode or system of taxation (sect. 91, sub-sect. 3). This right 
is exclusive when not coming within the classes of subjects assigned 
to the Provincial Legislatures, and as the Legislatures of the Pro- 
vinces are only authorized to raise a revenue by direct taxation and 
the other sources of revenue already mentioned, it follows thut the 
Parliament of Canada has the exclusive right to raise a revenue by 
means of indirect taxes, and the Legislatures of the Provinces have 
no such right. 

The terms of the Act seem clear on this point, and the Judicial 
Committee of the Privy Council liave so interpreted them by 
deciding in the case of the Attorney-General for Quebec v. The Q^ieen 
Insurance Company (1), that the tax imposed on insurance comp iuies 
by the Act 39th Vict. c. 7, of the Legislature of the Province of 
Quebec, was ultra vires, as not being a direct tax. 

The 43rd & 44th Vict. c. 9, is cleai ly a tax Act to raise a revenue 
for Provincial purposes, and, therefore, the only question is— is this 
a direct or indirect tax ? 

Stamp duties were introduced into England in 1671 by a statute 
entitled "An Act for laying impositions on proceedings at law," 
for nine years — continued for three years, then expired — revived in 
1693, and have always been considered indirect taxes. 

(1) 3 App. Caa. 1090 ; ante, vol. 1., p. 117. 



1 ''U 





' "9 



w 



flW"^' 



198 



PRIV\ COUNCIL. 



1888 

Attornet- 

General 

OF Quebec 

V. 

Reed. 

Sup. C, 
Canada. 

Ritchie, C. J. 



n 



This, in my opinion, is clearly an indirect tax levied for no specific 
purpose, but forms part of the consolidated revenue of the Province 
[417] for general purpose The judgments of Mackay, J., and 
Dorion, C. J., are, to my mind, conclusive. 

Had this been merely an easy means adopted for the purpose of 
collecting a fee of office for work actually performed, I might, as at 
present advised, be disposed to look on the matter in a very different 
light from what it now strikes me, but this is not a fee or reward 
for labour ; but it is a tax for raising a revenue, pure and simple, 
and has no more to do with the officer who files the paper or with 
the maintenance of the administration of justice than any other tax 
or source of revenue of which the consolidated revenue of the 
Piovince is composed for the support of the Government, and to 
promote the general interests of the people. 

I am of opinion the appeal should be allowed, and the judgment 
of the Superior Court affirmed. 

Strong, J. : — 

The question presented for our decision by thin appeal requires 
us to determine whether tlie 9th section of the Act 43 & 44 Vict, 
c. 9, was within the powers of the Legislature of the Province of 
Quebec. That section is in these words : 

" There shall be imposed, levied and collected a duty of ten cents 
on every writ of summons issued out of any County Circuit Court, 
Magistrate's Court, or Commissioner's Court in the Province, and ii 
duty of ten cents shall be imposed, levied and collected on each 
promissory note, receipt, bill of particulars, and exhibit whatsoever, 
produced and filed before the Superior Court, the Circuit Court, or 
the Magfistrate's Court, such duties payable in stamps." 

A former statute, the 39th Vict. c. 8, had imposed a similar tax of 
ten cents for every exhibit filed in a cause. This Act was repealed, 
and its provisions re-enacted and consolidated with other like pro- 
visions by the statute now in question, 43 & 44 Vict. c. 9. 

It has been argued that this was a direct tax which the Legislature 
[418] had power to impose under sub-sect. 2 of sect. 92 of the B. 
N. A. Act. I am, however, clearly of opinion that this contention 
must fail. Taxes on legal proceedings are invariably classed by 
scientific writers on taxation and political economy as indirect, and 
even though such a tax may not be indirect in the sense that the 
burthen of it is ultimately to be borne by a person other than he 
who originally pays it, it is clearly so, according to the well-founde'l 



PRIVY COUNCIL. 



199 



) apeci&c 

Province 

J., and 

iirpose of 
;ht, aa at 
different 
)r reward 
,d simple, 
jr or with 
other tax 
ue of the 
nt, and to 

judgment 



al requires 
& 44 Vict. 
*rovince of 

I ten cents 
luit Court, 
jnce, and a 
Id on each 
hatsoever, 
Court, or 

lilar tax of 
repealed, 
like pro- 
legislature 
lof the B. 
lontention 
llassed by 
[irect, and 
that the 
\r than he 
l-founde'l 



definition of Mr. McCuUoch (1), who thus disthiguishes direct and 
indirect taxes : 

•' A tax (he says) may be either direct or indirect ; it is said to be 
direct when it is taken directly from property or income, and indirect 
when it is taken from them by making individuals pay for liberty 
to use certain articles or exercise certain privileges." 

Subjected to this test, which has the sanction of a great number 
of similar authorities, it is apparent that the tax in question must 
bo classed amongst indirect taxes. 

The decision of the Privy Council in the case of the Attomey- 
Oeneral for Quebec v. The Queen Ins\irance Company (2) is also 
conclusively in favour of this view. 

It is there said that there is nothing in the B. N. A. Act pro- 
hibiting Provincial Legislatures from imposing indirect taxes ; that 
all that sub-sect. 2 of sect. 92 does, is to confer on the Provincial 
Legislatures exclusive powers to impose direct taxes, and that it 
does not follow that the Legislatures may not have implied powers 
of indirect taxation. 

To say that the Provincial Legislatures have power of indirect 
taxation, either generally, as an inherent power without reference 
to any authority derived from the B, N. A. Act, or as implied from 
the powers expressly conferred upon them, is to assume that they 
have, to some extent, concurrent powers with Parliament, and that 
[419] their powers of legislation are not limited by the subjects 
particularly enumerated in sect. 92. In other words, that, whilst 
sect. 92 gives certain exclusive powers, it does not restrict Provincial 
Legislatures to those subjects. This important question was referred 
to. but not decided, in the case of L' Union St. Jacques v. Belisle (3), 
in the Privy Council. I do not think, however, we are called upon 
to consider it for the purposes of this appeal, for assuming that no 
such power exists, and that the legislation now impugned cannot be 
referred either to any concurrent authority to impose indirect taxes, 
or to a power of taxing incidental to the express authority to 
legislate on the subjects comprised in sub-sects. 14 and 16 of sect. 
92, it appears to me that, under other provisions of the B. N. A. 
Act, and apart altogether from those contained in sect. 92, the 
imposition of this stamp duty on exhibits was not tdtra vires. 

By cap. 109 of the Consolidated Statutes of Lower Canada, which 

(1) McCuUoch on Taxation, p. 1. (2) 3 App. Gas. 1090 ; ante, vol. 1., p. 117. 
(3) L. R. 6 P. C. 31 ; ante, vol. 1., p. 63. 



1883 

Attornkt- 

Gknbral 

OP Quebec 

V, 

Rred. 

Sup. C, 
Canada. 

Strong, J. 



m 



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-'Mil 






i 



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I 



m I 






■am 






m" 



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fH" 



200 



PRIVY COUNCIL. 



1883 

Attornet- 

Genkhal 

OF Quebec 

r. 

Reed. 

Sup. C, 
Canada. 

Strong, J. 



I \ 



was in force at the time the B. N. A. Act, 1807, was passed nnd 
came into operation, the Governor in Council of the late Province 
of Canada wa8 authorized to impose taxes or duties upuii legal pro- 
ceedings had in any of the courts of Lower Canada, and thene taxes 
were to form part of the building and jury fund of the district in 
which they were collected. Subsequently by an Act passed in 1864 
(27 Sc 28 Vict. c. 5, s. 4) it was enacted that these taxes or duties 
should be paid by means of stamps. 

By the C5th sect of the B. N. A. Act, 1867, it was enacted that — 

" All powers, authorities and functions which under any Act of 
the Parliament of Great Britain or of the Parliament of the United 
Kingdom of Great Britain and Ireland or, of the Legislature of 
Upper Canada, Lower Canada, or Canada, were or are before or at 
the union vested in or exerciseable by the respective Governors or 
Lieutenant-Governors of those Provinces, with the advice, or with 
the advice and consent, of the respective executive councils 
[420] thereof, or in conjunction with those Councils, or with any 
number of members thereof, or by those Governors or Lieutenant- 
Governors individually, shall, as far as the same are capable of being 
exercised after the union in relation to the Government of Ontario 
and Quebec respectively, bo vested in and shall and may be exer- 
cised by the Lieutenant-Governor of Ontario and Quebec respect- 
ively, with the advice or with the advice and consent of or in con- 
junction with the respective executive councils, or any members 
thereof, or by the Lieutenant-Governor individually as the case 
requires, subject nevertheless (except with respect to such as exist 
under Acts of the Parliament of Great Britain or of the Parliament 
of the United Kingdom of Great Britain and Ireland) to be abolished 
or altered by the respective Legislatures of Ontario and Quebec." 

By the 126th section of the B. N. A. Act, it was also provided 
that: 

" Such portions of the duties and revenues over which the respec- 
tive Legislatures of Canada, Nova Scoti' . and New Brunswick, had 
before the union power of appropriativ>n, as are by this Act reserved 
to the respective Governments or Legislatures of the Provinces, and 
all duties and revenues raised by them in accordance with the special 
powers conferred upon them by this Act, shall in each Province 
form one consolidated revenue fund to be appropriated for the 
public service of the Province." 

It is clear, therefore, that by force of the 66th section, the power 
which by Con. Stats, of Lower Canada, c. 109, was vested in the 



1 respec- 

[ck, had 

leserved 

^es, and 

I special 
Irovince 

tor the 

power 
in the 



PRIVY COUNCIL. 



201 



1883 

Attorney- 
Gen Kn A L 
OP Quebec 

V. 

Reed. 

Sup. C, 
Canada. 



Governor in Council of the former Province of Canada, of imposing 
taxes and duties on legal proceedings, passed to and vested in the 
Lieutenani-Governor in Council of the Province of Quebec. Tliere 
cannot be a question as to this ; it was originally a power exclusively 
concerning and relating to that portion of dinada which constitute I 
the new Province of Quebec, ami c> le the exercise of which did not 
involve any interference with any other portion of the D' 'minion, or 
any extension of authority beyond the territorial limits of Quebec, strong, J. 
and therofi>re it was, according to the most strict and narrow con- 
struction which could be given to the language of the 65th section, 
[421] a power capable of being exercised after the union in rela'-on 
to the Government of Quebec. It follows, that prior to and at tlie 
time of the passing of the Provincial Act, 39 Vict. c. 8, the Lieut- 
enant-Governor in Council of the Province of Quebec, had the 
power of imposiug a tax or duty upon each exhibit filed in the courts 
pursuant to the authority conferred by Con. Stats, of Lower Canada, 
c. 109. 

Then, as the produce of such a tax would be in the words of sec- 
tion 125, a duty or revenue reserved by the B. N. A, Act to the 
Government of the Province of Quebec, it would, under the express 
provision of the last mentioned section, form part of the consolida- 
ted revenue fund of that Province, It was, therefore, up to 1875, 
when the 39 Vict., c. 8, was passed, quite within the competence of 
the Lieutenant-Governor in Council, not merely to impose this tax 
or duty on the filing of exhibits, but further to provide that the pro- 
ceeds of the tax, instead of being paid as before confederation, into 
the jury and building fund of each district, should be paid into th^ 
consolidated revenue fund of the Province ; indeed, it was not 
merely within the power of the Governor in Council to order the 
moneys so collected to be thus disposed of, but they were by law 
bound to make such a disposition of them, since the tax would come 
under the denomination of a tax or duty reserved to the Govern- 
ment of the Province, and was also a revenue over which the Legis- 
lature of the Province of Canada, before the union, had a power of 
appropriation ; for there can be no doubt or question that although 
the building and jury fund was kept apart from the consolidated 
revenue fund of the Province of Canada, nnd was to some extent a 
It cal fund, it was nevertheless a fund produced by taxes payable to 
the Crown, over which the Legislature of the old Province of Canada 
[422] had absolute powers of control and disposition. It can, there- 
fore, be demonstrated that the Lieutenant-Governor in Council 



i 



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■:i> 



:i:*; 



I'N 








202 



PRIVY COUNCIL. 



1883 

Attobnet- 

Gknbbal 

of qukbec 

V. 

Reed. 

Sup. C, 
Canada. 

Strong, J. 



Wil' 



~l,l 



couid, undar the Consolidated Statutes of Lower Canada, c. 109, 
have done pi _visely what the Legislature did by the Act of 1876' 
(39 Vict. c. 8,) have imposed a tax of ten cents on every exhibit filed 
in a cause, such tax to be payable by stamps, and the proceeds of 
the sale of the stamps to be paid into the consolidated revenue of 
the Province. 

Then, can it be said that it was any usurpation on the part of the 
Provincial Legislature when they a.ssume to themselves this same 
power which the Provincial Executive could, under the express 
provisions of the Confederation Act, have exercised without further 
legislative authority ? The answer to this is also to be found in the 
very words of the 05th section of the B. N. A. Act, which expressly 
provides that the powers of that section transferred to the Provincial 
Governments shall be "subject to be abolished or altered by the 
respective Legislatures of Ontario and Quebec." That the transfer 
from the executive to the legislative department of the Government, 
of the authority which had been in the manner already indicated 
reserved to the Lieu*;enant-Governor in Council, was an alteration 
within the meaning of the authority given to the Legislature to alter 
powers thus vested, is surely too plain to require or even to be sus- 
ceptib'e of argument ; having the right to abolish the power alto- 
gether, it must have been competent to the Legislature, under the 
lesser authority given to alter, to assume the exercise of it them- 
selves, and thus to provide that these functions of legislation and 
taxation which, in the oM Province of Canada had been delegated 
to the Governor in Council, should in the future be attributed to and 
exercised by the appropriate constitutional depository of such power, 
[423] the Legislature itself. Under the express authority to alter, 
contained in the 65th sect., and also under sub-sect. 1 of sect. 92, 
authorizing constitutional changes, the Legislature could therefore 
havt! passed an Act expressly and formally revoking the authority 
given to the Governor in Council by Consolidated Statutes of Lower 
Canada, c. 109, and providing that thereafter, the taxes authori/ed 
by that st8':jte to be imposed by Order in Council, should only be 
levied under the authority of the Legislature itself. And if it could 
have thus expressly revoked or transferred the power in question, it 
could also do so by implication as well ; and this it did, when by 39 
Vict. c. 8. and the subsequent statute 43 & 44 Vict. c. 9, by 
which the provisions of the first mentioned Act are renewed and con- 
solidated, it imposed i>he tax now called in question. 

The foregoing is in accordance with the view taken in the Court 



PRIVY COUNCII 



203 



ko Court 



of Queen's Bench by Mr. Justice Cross, in whose judgment I agree 
in every respect. 

I am therefore of opinion that the 9th section of the statute 43 & 
44 "Vict. c. 9, was not vUra vires of the Legislature of the Province 
of Quebec, and that this appeal must consec^uently be dismissed 
with costs. 

FOUENTBB, J. : — 

This question has been so fully treated by Sir A. A. Dorion that 
I do not see what I could add. In my opinion this is an indirect 
tax, and therefore the Local Legislature had no right to impose- it. 
I also agree with the reasons given by the Chief Justice of this 
Court 

Henky, J. : — 

Under the B. N. A. Act, the Local Legislatures were not 
auth< >rized to impose any indirect tax, and it is for us to consider 
now whether this Act (43 & 44 Vict. c. 9) and this Act only (for 
that is the only one before ns) was within the lowers of the Quebec 
Legislature since 1867. The first question is — is it a direct or an 
indirect tax ? I have no hesitation in saying that it is an indirect 
[424] tax. That tax was not for the payment of juries or other 
purposes connected with the court, but it was to be paid into the 
consolidated revenue fund of the Province. Now, carrying out the 
principle that is involved, if that is within the powers of the Local 
Legislature, where is the limit to be ? We might j^o on to any 
extent. The Judicial Committee of Ihe Priv^- 1 junci). have decided 
in Attorney-General for Quebec v. Queen Ins. Co. (1), that they could 
not impose a duty by stamps, because i^ was an indirect tax. Thi.s 
court decided that the Legislatar." of Oatario had no right to levy 
an indirect tax on brewers, because it ie taken indirectly from the 
pockets of the consumers. (2) Now, this tax is to bo taken out of the 
pockets of suitors and placed in the general revenue of the Province. 
That is to all intents and purposes an indirect tax, and therefore I 
think the Legislature exceeded its powers. As to whothev the 
Legislature had that power or not, and many of the m.<,lter8 argued, 
we have already had under the consideration of this court, and the 
decisions we have given on this very question, rendc )'t unnecerts;»rj- 



1883 

Attobnit- 

Genkral 

or Quebec 

V. 

Beed. 

Sup. C, 
Canada. 

Strong, J. 



(1) 3 App. Cos. 1090 ; ante vol. 1., p. 117. 
(2) [3ee Severn v. The Queen, 2 Can. S. C. R. 70 ; ante, vol. 




p. 414 ] 



w 



204 



PRIVY COUNCIL. 



1:1 ' ' 



m 



• M 



, I 



i; 



1883 

Attobnev- 

Genbbal 

of qcebeo 

V. 

Reed. 

Sup. C, 
Canada. 

Henry, J. 



that I should say much. I think the appeal ought to be allowed, 
and the judgment below reversed. 

Taschereau, J. : — 

I am of opinion, with the Superior Court of Montreal, and the 
learned Chief Justice of the Court of Queen's Bench, tlat the tax in 
(juestion here is not a direct ta.x, and that it is by direct taxation 
only that the Provincial Legislatures can raise a revenue for Pro- 
vincial purposes. I am also of opinion that the said tax is what the 
statute itself calls it, really a tax or duty, and not a fee of office 
under c. 9.3 of the Consolidated Statutes L. C. The fees of the 
officers of the court have not been increased, and were not intended 
[425] to be increased by the Act impugned ; they do not collect it, 
neither does it inure to their benefit in any way. On these three 
points, we are, I believe, unanimous. I am, however, of opinion 
that the section of the Act 43 & 44 Vict. c. 9, imposing this duty of 
ten cents on each exhibit, is not ultra vires, and this upon the 
following ground. 

Before confederation the Governor in Council could clearly, under 
sect. 32, c. 109, of the Con. Sta' . L. C, have imposed such a tax or 
duty, payable in stamps by the Act of 18G4. Under sects. 65 and 
129 of the B. N. A. Act, this power was continued to the Lieutenant- 
Governor in Council, and under these two sections the exclusive 
power to repeal or alter the said provisions of the said chapter of 
the Consolidated Statutes, or of the said Act of 18G4, was vested in 
the Provincial Legislature. The Provincial Legislature, conse- 
quently, must have, and alone have, complete control over the 
building and jury fund created under the said chanter of thf Con- 
solidaed Statutes, inclu'Hng the power to abolish it, and to enact 
that it Bhall form part of the consolidated revenue. Before con- 
federation, under the union of ^he two Canadas, the i,..T'sol:dated 
fund was, of course, a fund common to both of these Provinces, so 
that, in order t> prevent local revenues raised for special local 
expenses, expenses personal to one Province, from inuring to the 
benefit of the other Province, it was necessary to create special funds 
of the kind in question. Each Province levied such taxes for itself 
alone, and not at all for the benefit of the other, nor, in other words, 
for the consolidated general revenue fund, which belonged to the 
two Provinces jointly. But, since confederation, this reason does 
not exist. The consolidated fund of each Province belongs, in s 
integrity, to that Province and is under exclusive Provincial control. 



PKIVY COUNCIL. 



205 



1883 

Attornkt- 

Gkneral 

OF Quebec 

V. 

Reed. 

Sup. C, 
Canada. 



And if the Province of Quebec has, either expressly or impliedly, 
by the provisions of the 31 Vict. c. 9, s. 8, or by those of the 
[426] particular enactment now impugned, abolished the building 
and jury fund, and thrown the proceeds of it into its consolidated 
revenue fund, it has, it seems to me, dealt with nothing but what 
is under its legislative control, or done nothing but what it had 
full power to do under the B. N. A. Act. It has imposed an 
additional tax, it is true, but has it not the power — and the exclusive Taschereau J 

power — to do so (not for general Provincial purposes, but for the 

same purposes as those for vhich the said provisions of the Con- 
solidated Statutes were enacted) and this, as a consequence of the 
power to alter or amend them. It might be that, if in a proper 
case, it was alleged and proved that, for the whole Province, the 
expenses of the administration of justice are more than covered by 
the duties imposed on the law proceedings, and, if it was demon- 
strated that the Legislature, under pretence of providing for these 
expenses, has attempted, in evasion of the provisions of the B. N. 
A. Act, to raise a revenue for general Provincial purposes by indirect 
taxation on these law proceedings, the courts would then interfere 
and declare that these Legislatures cannot in violation of the law so 
enlarge the powers conferred upon them. But there is no issue of 
that kind raised here. What Mr. Honey, the prothonotary of 
Montreal, examined as a witness in this case, says on this subject, 
does not relate to all the expenses connected with the Montneal 
Court House, and, moreover, has no application to the Province at 
larj,'e, in which it is notorious that the deficit in the revenues con- 
nected with the administration of justice is very large. Tlien, it 
seems to me, the difference betwem the building and jury fund and 
the consolidated revenue is merely one of book-keeping. What has 
been paid to the building and jury fund before confederation, under 
[427] the Act of 1864, was deemed payable to the Crown, though for 
a special purpose only, and what was due to it was recoverable by the 
Crown. And that this tax of ten ceuts is ultra vires, because it is 
also, by the Act imposing it, declared to be deemed payable to the 
Crown, is what I cannot see. On the contrary, it seems to me clear 
that the Provincial Legislature alone had the power to pass an 
enactment like the one impugned, and to enact, as a matter of pro- 
cedure, as it did by the same statute, that no exhibit shall be 
received in the courts of justice if not bearing this ten cent stamp. 
The Dominion Government has certainly not that power. So, if the 
Provincial Government did not have it, it would follow that, since 








» >!' tV 






m 



r 


wt 





1 1 



206 



PRIVY COUNCIL. 



Attornky- 

Gbnbral 

of qcbbbc 

V. 

Reed. 

Sup. C, 
Canada. 



I ' 



lllj^j 



1883 confederation there would be no power anywhere to provide for 

the expenses of the administration of justice in the Province of 
Quebec, on the system and basis existing before confederation. It 
would follow that if a new procedure was introduced as, for instance, 
has been done by the iutroduction of the writ of injunction in 1878, 
the Province would have no power to impose any duty on that par- 
ticular proceeding or act of procedure, or that if a new court was 
Taschereau, J. created, as was, for instance, the District Magistrates Court, all the 
proceedings in that court would be entirely free from all such tax. 

These Acts of the Consolidated Statutes anU of 1864 formed part 
of what was, at confederation, known as the Acts concerning the 
administration of justice in the Province and the procedure in civil 
matters in the courts ol le Provi'^^e, and as such they have been, 
by the B.N. A. Act, left •-• lie yxclusive control of the Provin- 

cial Legislature. 

Tiie Act 31 Vict. c. 2, imposed for the building and jury fund 
before confederation, repealed by the Act now impugned, re-enacted 
that all such duties and taxes were to be deemed ps>yaMe to the 
[428] Crown. Then before confederation, the Act of 1864, as to these 
very duties, is entitled : *' An Act for the collection, by means of 
stamps of fees of office, dues and duties payable to the Crown " ; and 
it-! preamble says : " Whereas it is expedient that all fees and charges 
payable to the Crown." By section 9 thereof, " it specially enacted 
that all the fees, dues, duties, taxes and charges payable under the 
said Acts and parts of Acts (including those for the building antl 
jury fund) shall be considered to be fees, dues, duties, taxes and 
charges payable to the Crown for the purposes of this Act. " Is it 
not clear that all these duties, since they have been first enacted, 
have always been considered to be deemed payable to the Crown? 
They are received and paid to certain officers, but these officers 
receive it for the Crown ; «rhat is so paid them is paid to the Crown. 

And the argument, that because 31 Vict. c. 9, s. 3, enacts that all 
revenues subject to Provincial control are to form part of the con- 
solidated fund, this new tax must also fall in that fund, seems to 
me untenable. Ever since the 9 Vict. c. 114, confirmed by 10-11 
Vict. c. 71, of the Imperial Statutes (cap. 14 of the Consolidated 
Statutes of Canada) it had been likewise for the old Provinces 
enacted that all revenues subject to Provincial control should form 
a consolidated revenue fund. Yet this did not and could not pre- 
vent the Legislature of Canada (before confederation) from creating 
for the Pro\ince of Quebec the building and jury fund and its reve- 



PRIVY COUNCIL. 



207 



Attornkt- 

Gkneral 

OP Quebec 

V. 

Reed. 

Sup. C, 
Canada. 



nues. If the appellant's contention that this new tax is illegal 1883 
simply because it is declared to be deemed payable to the Crown was 
to prevail, it would follow that all such taxes of the same kind levied 
since confederation are also illegal, and have been illegally levied, 
since they also were all deemed payable to the Crown, and I do not 
believe that the appellant would be prepared to go so far. 

[429] As a matter of fact, I may remark here, both the Quebec 
Provincial Legislature and the Dominion Parliament have, since con- Taschereau, J. 
federation, recognized the existence of this building and jury fund, 
the former by, amongst others, 41 Vict. c. 16, and 45 Vict. c. 25, 
and the latter by the Insolvency Act of 1869, s. 152, and the Insol- 
vency Act of 1875, s. 145. 

It must also be observed that this Act 43 & 44 Vict. c. 9, is under 
one of its special provisions (sect. 20) to be read as forming part of 
the said Stamp Act of 1864, which, in its turn, must be read in con- 
nection with the said c. 109 of the Consolidated Statutes. But 
whether or not this building and jury fund has been abolished seems 
to me immaterial. I say that if it still exists, the proceeds of this 
new tax must go to it, though they are, by the Act, deemed payable 
to the Crown the same as all similar taxes imposed before confedera- 
tion, which, though also deemed payable to the Crown, go to that 
fund ; and if there is now no such special fund, it is no objection to 
the legality of this lax that it goes to the consolidated revenue, 
wherein that special fund has merged, the same as similar taxes 
imposed before confederation, which must now all go to that con- 
solidated fund. 

As to the ground that this is a new or an additional tax, I have 
already said : 

1st. That, although an indirect tax, it is not a tax for the general 
revenue of the Province. ♦ 

2n.1. That the Provincial Legislature lias the power under sects. 
65 and 129 of the B.N. A. Act to alter or amend the Acts under 
which similar taxes existed on law proceedings at confederation. 

3rd. That, consequently, the Provincial Legislature could im- 
pliedly, as it has done by the enactment objected to (as it can 
expressly), take awny from the Lieutenant-Governor in Council the 
powers he had in viitue of the said Acts, nnd itself exercise these 
[430] powers ; that, therefore, the Provincial Legislature has the 
power not only to abolish or diminish the said taxes, or to transfer 
a jiarticiilar tax from one proceeding to another, but that it can also 
legally impose a tax or duty of a similar uature on proceedings or 



11 



I 



m 






^ t'l 



1 



m 
m 



208 



PRIVY COUNCIL. 



1883 

Attobnkt- 

Genbral 

OF Quebec 

V. 

Bbed. 

Sup. C, 
Canada. 

Taschereau, J. 



t ) 



llll'i 



acts of procedure on which none were imposed at the time of con- 
federation, ani I presume, though unnecessary to decide for the 
purposes of the present case, on any new act of procedure created 
since confederation, provided that the Province, in the exercise of 
this power, confiues itself to the raising of a revenue to meet the 
expenses of the administration of justice, on the system and basis 
in existence before confederation. 

GWYNNE, J. : — 

The real question involved in this case appears to me to be, 
whether any limit, and if any to what extent, is set by the B.N. A. 
Act to the power of the Provincial Legislatures to raise revenue by 
taxation. The scheme of the framers of our Federal Constitution, to 
provide means for the support of the Provincial Governments and 
legislatures, consisted primarily in a subsidy to be paid to each Pro- 
vince in proportior its population, as ascertained by the census 
of 1861. Acjorumgi^ by the 118th sect, of the B.N. A. Act, such 
subsidy is provided to bo paid by the Dominion of Canada to the 
respective Provirc of < . u. io, Quebec, Nova Scotia, and New 
Brunswick. By this sub-sidy, supplemented by such revenue raised 
by taxation, as is authorized by the 92nd section of the Act, together 
with the public property and assets assigned to each Province, all 
the expense attending the ciirrying on the several Px-ovincial Gov- 
erments must be defrayed. Now, by the 2nd item of sect. 92, the 
Legislatures of each Province are authorized to make laws in rela- 
tion to direct taxation within the Province, in order to the raising of 
[431] a revenue for Provincial purposes ; by the 9th item of the same 
section they are autliDrized to make laws in relation to shop, ta^^^ern, 
auctioneer and other licenses, in order to the raising a revenue for 
provincial, \oca\ or municipal purposes ; and by the 15th item they 
are authorized to make laws in relation to the imposition of punish- 
ment by tine, penalty ov imprisonment for enforcing any law of the 
Province made in relation to any matter coming within any of the 
classes of subjects enumerated in sect. 92. These are the only sec- 
tions which expressly authorize the I'aising, by any Act of the Pro- 
vincial Legislatures, any revenue whatever by any system of laxation. 
The public propertj- and assets transferred to each Province consti- 
tute an additional source of revenue, but at present we have to deal 
only with the power of the respective Legislatures to raise by taxa- 
tion a revenue for Provincial purposes. 

The express provision made by item 2, which, while it authorizes 



lonzes 



PRiW COUNCIL. 



209 



Attornbt- 

Gbnkkal 

of quvbec 

V. 

Rbeo, 

Sup. C, 
Canada. 



the Legislatures to make laws, in order to the raising of a revenue 1883 

for Provincial purposes by taxation, limits the exercise of the 
authority thus conferred to direct taxation, very clearly excludes, 
in my judgment, the power of raising a revenue by any species of 
taxation other than direct ; but it is contended that this is not so, 
and that, as there is no express clause in the Act prohibiting 
indirect taxation, the Provincial Legislatures have implied power 
to raise revenue by indirect taxation to defray the expenses attend- Gwynne, J. 
ing the exercise of their jurisdiction over each and every subject 
placed by the 92nd section under their exclusive control, and that 
the particular tax in question here being a stamp tax on legal pro- 
ceedings, even though it be not a direct tax, is authorized by the 
14th item of section 92, which places the administration of justice, 
and among other things, the maintenance of Provincial courts, 
under the control of the Provincial Legislatures ; the contention 
[432] being that, for the maintenance of the courts and the adminis- 
tration of justice, the Provincial Legislatures have, by force of this 
item. No. 14, implied authority to raise a revenue by indirect 
taxation. But that the maintenance of Provincial courts and the 
administration of justice are Provincial purposes, there can be no 
doubt. They are, therefore, comprehended within the purview of 
item 2 of section 92, which in express terms prescribes direct taxa- 
tion as the mode of taxation to be adopted for raising revenue for 
Provincial purposes, so that, upon the principle of expresstim facit 
cessare taciturn, there can be no such implied power involved in this 
item 14 as is insisted upon. Moreover, if the contention were sound , 
then, upon the same principle, they could equally pass au Act 
imposing a special tax of an indirect character for the payment of 
Provincial officers under a power implied under item 4 of this 92nd 
section, and another Act imposing another special tax, also of an 
indirect character, to defray the expense attending the establish- 
ment, maintenance and management of public &u(I reformatory 
prisons, under the powers conferred by item 6, and another to 
defray the expense attending the establishment, maintenance and 
management of hospitals, asylums, etc. , under the powers conferred 
by item 7 ; and, as in fact is boldly contended, other Acts imposing 
indirect taxation to defray the expenses attending the maintenance 
and management of all matters of a mert- ly local and private nature, 
and so the effect would be, that this implied power of raising revenue 
by indirect taxation, which it is contended the Legislatures have, 
being exercised, as it might be if they have the power, to raise 
U 



<-y 




:' 






210 



PRIVY (01 XCIL. 



Attounkv- 

Gknkiui. 

OF Qi:eui;c 

r. 

Rkri). 

Sup. C, 
Canada. 



I 



Hi- 

fiii |:j: 



HI! 



1S8S .«ufBcif nt revenue to defray all the cxpen.«e.-< of the Government aud 

Legishitiires in respect of all the several matters under their control 
and jurisdiction, it would be quite unnecessary lor them to exercise 
[433] the power conferred by item 2, raising by direct taxation a 
revenue for Provincial purposes, or to draw upon the revenue 
created by the subsidy paid by the Dominion or by sale of the 

public property, or other income arisin<; therefrom, or from the 

Gwynne, J. assets assigned to each Province. Such a contention appears to me to 
involve so palpable a reductio ad ahsurdum as to carry with it its 
own refutation ; and indeed the judgment of the Pri^-y Council in 
the Attorney-General for Quebec V. The Queen Insiirance CwnjMiiy (1), 
in effect decides that the Pruvincial Legislatures cannot by any act 
of theirs authorize the raising a revenue by any mode of taxation 
other than direct. 

It was further argued that, inasmuch as (as was contended) the 
Lieutenant-Governor of Quebec could, under the 129th sect, of the 
B. N. A. Act, impose the very tax which the Quebec Statutes 39 
Vict. c. 8, and 43 & 44 Vict. c. 9, profess to impose, therefore it 
must be competent for the Legislature by an act of legislation, to 
impose a tax which the Lieutenant-Governor by an act in Council 
could impose. Independently of the objection, which I have already 
urged, that there being given by the B. N. A. Act express power to 
the Provincial Legislatures with reference to taxation, and that 
being of a particular and limited character, no power of a different 
and an unlimited character can be implied, the contention under 
consideration, which, however, is not, in my opinion, raised before 
us in this case, proceeds upon the assumpticm that the Lieutenant- 
Governor could impose the tax in question — a position which, as it 
appears to me, requires for its establishment something more than 
its assumption — for if the Legislature of the Province has only 
p ^wer to impose direct taxation, and if the tax in question be not 
a direct tax, it would seem to be inconsistent that the Lieutenant- 
Governor could, since confederation, impose indirect taxation as a 
[434] source of revenue for a I'rovincial purpose which, by the Con- 
stitutional Charter, under which both Lieutenant-Governor and 
Legislature exist, the Legislature has ko power to impose. The 
(juestion which, in such case, appears to me to atise is, whether the 
Acts, in virtue of which the Governor-General of the late Province 
of Canada had, before confederation, power to impo le taxes of the 



(1) 3 App. Gas. lOlM); ante, vol. 1., p. 117. 



rn 



PllIVY COUN'CIL. 



211 



nt aud 
jontrol 
xevcise 
at ion a 
eveiiue 

of the 
om the 
to me to 
th it ita 
uncil in 
yany (1), 

any act 
taxation 

ded) the 
!t. of the 
atutes 39 
irefore it 
lation, to 
1 Council 
e already 
power to 
and that 
ditferent 
in under 
id before 
(Utenant- 
lich, as it 
[lore than 
has only 
,n be not 
lutenant- 
Ltion as a 
the Con- 
•nor and 
,ae. The 
lether the 
Province 
63 of the 



Attoknky- 

Gkneral 

of (.^ueiikc 

V. 

REEr>. 

Sup. C, 
Canada. 



nature of the tax in ([ueation, can be Acts whoso provisions are l.s.s;? 

continued by the 120th sect, of tlie 13. N. A. Act, which enacts thatf 
except aa otherwise provided by the B. N. A. Act, all laws in force, 
titc, shall continue, etc., etc., whether in fact, if the Legislature is 
prevented by the provisions of the B. N. A. Act from raiaing a 
revenue by indirect taxation, the imposition of auch a mode of 
tiixation by the Lieutenant-Governor in Council is not prevented 
also ; and whether the provision limiting the power of the Legisla- Gwyiine, J, 
tiire to the imposition of direct taxation is not auch a provision 
otherwise as would exclude the Act under which such taxes had 
been impoaed by the Governor in Council before confederation, 
from the operation of the 129th aection of the B. N. A. Act 1 The 
(i5th section apjjears to me to relate to acts of the Lieutenant- 
flovemor, neceeaary for carrying on the Government merely, and 
that, unless the Lieutenant-Governor has authority to impose this 
tax under section 129, he cannot have it under section C5. Unless 
the law or Act authorizing the imposition is continued by section 
129, it is plain the Lieutenant-Governor could not impose it under 
section 65. Here the question, however, is, whether the Acts or 
Act of the Legislature of Quebec, professing to impose the tax in 
<[Uestion, are or is ultra vires? and the answer to that question 
depends upon the single point, namely : whether the tax is or not a 
direct tax ? for the Lej^islatures have not, as it appears to me, any 
[435] power to raise a revenue for any Provincial purpose by any 
mode of taxation otherwise than direct. The whole expense of 
Government and legislation for Provincial purposes, which terms 
comprehend the whole expense attending all Provincial purposes 
placed under the control of the Provincial Government and Legis- 
lature, must be defrayed out of the produce of the public property, 
and assets assigned to each Province, and the subsidy paid to the 
Province by the Dominion — supplemented, if these sources of 
revenue should be insufficient, by taxation of a direct character 
only, in addition to the money raised under the special authority 
given by clauses 9 and 15 of sectitm 92. And as I am of opinion 
that tb-i tax in question is not a direct tax, a point, in my opinion, 
concluded by the judgment of the Privy Council in the Attorney- 
General V. The Queen Insurance Compamj (1), the appeal should be 
allowed with costs. 

(1) 3 App. Cos. 1090; oK^e, vol. 1, p. 117. 



I 






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188» 

Attorney 

Gbnekal 

or Quebec 

V. 

Heed. 

ii. B., Quebec. 

Dorion, C.J. 



I.r 



h ' 



212 PRIVY t'OUNCIL. 

Judgments in Quebec Court of Q.B. — Api-eal side (1). 

DoRiON, C. J. : — 

The respondent, wishing to test the legality of the taxes imposed 
by the 43 & 44 Vict. c. 9 (Quebec), obtained a rule nisi for contempt 
against the Prothonotaries of the Superior Court of the District of 
Montreal, for refusing to receive and file an exhibit unaccompanied 
by stamps to the amount of ten cents, as required by the article. 

After the return of this rule the Attorney-Genet al for the Province 
of Quebec obtained leave to intervene, to sustain the legality of the 
tax, and contested the rule. 

The Court below held that the tax was unconstitutional, and, dis- 
missing the contestations of the appellant, declared the lule absolute 
against the Prothonotaries, who were condemned to be imprisoned 
in the common gaol of this district for a period of six months, unless 
they sooner accepted and filed the exhibit offered by the respon- 
dent. The Prothonotaries were further condemned to pay the 
costs. 

The appeal is by the Attorney-General alone. Had the Protho- 
notaries appealed from the judgment, they might probably have 
raised an important question as to regularity of the proceedings 
adopted against them. They, however. Lave not done so, and the 
only question submitted to us, as between the appellant represent- 
ing the Province of Quebec and respondent, is as to the legality or 
illegality of the tax, both parties having, at the hearing of the case, 
waived all objections as to the form or regularity of the proceedings. 

Before the B. N. A, Act, 1867, the Governor-in-Council was 
authorized under the Con. Stat, of Lower Canada, c. 109, entitled 
" An Act respecting Houses of Correction, Court Houses and Gaols," 
to impose taxes or duties upon legal proceedings had in any of the 
Courts in Lower Canada (sect. 32, sub-sect. 1). These taxes or 
duties were to be collected in each district by persons appointed by 
the Governor-in-Council, and by them paid to the Sheriff of the 
district, to form ptrt of the building and jury fund of his district. 
(Sect. 15 and sect. 32, sub-sect. 2, of same Act. ) 

By an Act passed in 1864 (27-28 Vict. c. 6, sect. 4), it was pro- 
vided that these taxes or duties should be collected by means of 



(1) [The Judgments of the Judges 
of the Queen's Bench and of Mr. 
Ju8tic« Mackay in the Superior 



Court, are printed from the appeal 
book, prepared for the appeal to the 
Supreme Covurt of Canada.] 



PRIVV COUNX'IL. 



213 



(!)• 



imposed 

sntempt 

iBtrict of 

mpanied 

t^cle. 

Province 

,ty of the 

and, dis- 
I absolute 
^prisoned 
h8, unless 
e respon- 
I pay the 

e Protho- 
ibly have 
•oceedings 
), and the 
■epresent- 
sgality or 
the case, 
iceedings. 
luncil was 
, entitled 
jd Gaols," 
|ny of the 
taxes or 
•inted by 
iff of the 
district. 

was pro- 
leans of 

pbe appeal 
eal to the 

n 



Attorn EY- 

Grnkrai. 

of qukbec 

V. 

Rrbi). 



stamps. Duties were imposed by the Governor-in-Council, under 1883 

these statutes, which were still in force when the confederation of 

the several Provinces took place ; and by sect. 129 of the B. N. A. 

Act, 1867, they were continued in force until they should be 

repealed, abolished or altered by the Legislature having authority 

under the Act to do so ; that is, by the Legislature of the Province (^. B., Quebec. 

^•f Quebec. Dorbi^C.J. 

In 1875; the Legislature of the Province of Quebec, by the Act, 

31' Vict. c. 8, for the first time imposed a tax of ten cents on the 
filing of every exhibit in a cause. This tax, payable by means of 
stamps, was to form part of the Consolidated Revenue of tlie Pro- 
vince of Quebec (sects. 1 and 2). 

Tills Act was repealed by the 43 *S: 44 Vict. c. 9, and the same 
tax of ten cents on the filing of exliibits was re-imposed (sect. !)). 
Although this Act does not expressly declare that this tax shall form 
part of the Consolidated Revenue of the Province, as the repealed 
Statute (39 Vict. c. 8) did, yet it enacts that all the duties therein 
mentioned shall be deemed payable to the Crown (sect. 3, snb-sect. 
2), and they necessarily fall under the provision of the 31 Vict. c. 
9, sect. 3, which declares that all revenue whatever over wliich the 
Legislature of the Province has power of appropriation, shall form 
one Consolidated Revenue Fund to be sppropriated for the public 
Service of the Province. 

This special tax has therefore been imposed since the B. N. A. 
Act by the Legislature of the Province of Quebec, to form part of 
the Consolidated Revenue of the Province. 

By the B. N. A. Act, 1867, sect. 92, sub-sect. 2, the Legislature 
of each Province is authorized to raise a revenue for Provincial 
purposes by means of direct taxation, and fi'om the other sources,- 
such as those mentioned in sub-sects. 5, 10, and 15, which have no 
application to the present case. 

To the Dominion Parliament is given the right to raise money by 
any mode or system of taxation (sect. 91, sub-sect. 3). This right 
is exclusive when not coming within the classes of subjects assigned 
to the Provincial Legislatures, and as the Legislatures of the Pro- 
vinces are only authorized to raise a revenue by direct taxation and 
the other sources of revenue already mentioned, it follows that the 
Parliament of Canada has the exclusive right to raise a revenue by 
means of indirect taxes, and that the Legislatures of the Provinces 
have no such right. 

The terms of the Act seem clear on this point, and the Judicial 



m 



II i'i 



214 



PUIVY COUNCIL. 



1883 
ArroBNKY- 

(iKNKRAL 
0\f Ql'EDEC 

I'. 

Reeo. 

Q. B.,<^i.b«c, 

Dorion, C..I. 



'' 



Committee of the Privy Council have so interpreted them by 
deciding in the case of The Attorncy-Ocneial for Qiiehec v. The Queen- 
hisMruHcc Company {\),i\\Ai the tax imposed on Insurance Com- 
panies by tlie \rv 39 Vict. c. 7, of the Legislature of the Province 
of Quebec, was ^dtra vires, as not being a direct tax. 

The main, if not the only, question to be decided here is as to 
whether t!ie tax imposed on the tiling of exhibits by means of 
stamps in ii direct or an indirect tax. 

Without entering into a minute examination of the authorities as 
to what distinguishes a direct from an indirect tax, it will be sufh- 
cient to quote an extract of the judgment of the Judicial Committee, 
in the case just cite«l, to shew that their Loidships have, in that 
case, laid dovm a rule as to what constituted an indirect tax in such 
an emphatic manner that 1 cannot conceive how it is possible for us 
not to be guided by their decision. 

*' The single point to be decided upon this " [the effect of the 2nd 
sub-section of the 92nd section], said their Lordships, " is whether 
a Stamp Act — an Act imposing a stamp on policies, renewals, and 
receipts, with provisions for avoiding the policy, renewal, or rec«pt, 
in a Court of Law, if the stamp is not afKxed, — is or is not direct 
tiixa^on ? Now, here again we find words used which have either 
a technical meaning, or a general, or, as it is sometimes called, a 
popular meaning. One or other meaning the words must have ; and, 
in trying to tind out their meaning, we must have recourse to the 
usual sources of information, whether regarded as technical words, 
words of art, or words used in popular language. And that has 
been the course pursued by the Court below. First of all, what s 
the meaning of the words as words of art ? We may consider their 
meaning either as words used in the sense of political economy, or 
as words used in jurisprudence, in the Courts of Law. Taken in 
either way, there is a multitude of authorities to shew that suih a 
stamp imposed by the Legislature is not direct taxation. The 
political economists are all agreed. There is not a single instance 
produced on the other side. The number of instances cited by Mr. 
Justice Taschereau, in his elaborate judgment, it is not necessary 
here to do more than refer to. But surely if one could have been 
found in favour of the appellants, it was the duty of the appellants 
to call their Lordships' attention to it. No such case has been 
found. Their Lordships, therefore, think they are warranted in 

'1) 3 App. Gas. 1090 ; ante, vol. 1, p. 117. 



is as to 
leans of 

oritie!* as 
be suffi- 
mmittee, 
e, in that 
X in such 
ble for us 

t the 2nd 
i whether 
iwals, and 
)r recwpt, 
[lot direct 
ive either 
called, a 
ave ; and, 
se to the 
;al words, 
that has 
[1, what a 
lider theii' 
»nomy, or 
[Taken in 
lat suih a 
n. The 
instance 
|d by Mr. 
lecessary 
lave been 
.ppellants 
as been 
,nted in 



I'UIVY COUNCIL. 



215 



ArroRNKY- 

(iKNKKAI, 

or <^»i:khki' 
J*. 



asHuniing that no such case oxist^i. As regards judicial inti-rpreta- \i>K\ 

tion, there are sonie English decisions, and several American 

decisions, on the subject, many of which are referred to in the 

judgment of Mr. Justice Taschereau. There, again, they are all 

line way. They all tr^at stamps either as indirect taxation, or as 

not being direct taxation. Again, no authority on the otiier side i ». H., «^utl>pc. 

has been cited on the part of the appellant. ,, '. ,, , 

" Lastly, as regards the popular use of the words, two cyclopa-dias, 

at least, have been produced, shewing that the popular n>ni of the 
word is entirely the same in tliis respect as the technical use of the 
word. And here, again, there is an utter deficiency on the j>art of 
the appellants in producing a single instance to the contrary. That 
being bo, it is not necessary, it appears to their Lordships, for them 
to consider the scientific 'definition of direct or indirect taxation. 
All that is necessary for them to say is, that finding these words 
used in an Act of Parliament, and finding that all the then known 
definitions, whether technical or general, would exclude this kind of 
taxation from the category of direct taxation, they must consider it 
was not the intention of the Legislature of England to include it in 
tlie term direct taxation, and therefore that the imposition of this 
stamp duty is not warranted by the terms of the 2nd sub-section of 
sect. 92 of the Dominion Act." 

This judgment is conclusive on the point in issue. A stamp tax is 
not a direct tax, and therefore not within the legislative powers 
conferred on the Ijegislatures of the several Provinces composing 
the Dominion of Canada. The present tax is precisely of the same 
character as the one which the Legislature of Quebec had imposed 
on insurance policies by the 39 Vict. c. 7, and which was declared 
unconstitutional. 

In both cases the tax is imposed on commodities and is paid with 
the expectation on the part of the party who pays it, that he will 
recover it back from some other party, since in the one case the tax 
was to be added to the premium of insurance, and in the other it is 
to be included in the bill of costs. Moreover, in both cases, the 
documents to which the required stamps are not attached, cannot be 
received as evidence in a court of Justice. I fail to perceive an}' 
distinction between this case and the one of The Attorney-Goieralfor 
Quebec v. The Queen hisurance Compan\i (1). 

It is, however, argued on behalf of the appellant that although it 



(1) 3 App. Cas. 1090 ; ante, vol. 1., p. 117. 












.,;! 



Ma 



1 



I 



4 



.m 



■Oil .ii 



.11 



' fill 






I 

■III 



';H 



216 



PRIVY COUNCIL. 



l! ■ ( 



ini 



Attorney- 
General 
OK Quebec 

V. 

Reed. 



1883 may he an indirect tax, yet, as it is raised for a special purpose, the 

m« inienanrc of courts of justice, whidi, according to sub-sect. 14 of 

sect. 92, is to be provided for by tlie Legislatures of the Provinces, 

and as similar taxes existed when the confederation took place, and 

were continued in force by the 120th sect, of the B. N. A. Act, 1887, 

Q. B., Quebec, until altered or repealed, it was in the power of the Legislature of 

T, '■ r, T the Province of Quebec to vary this tax and to adapt it to the new 
Dorion, C.J. *^ '■ 

conditions of Provincial existence. 

It is, moreover, argued that the bi»ilding and jury fund was 
merged into the Consolidated Revenue of the Province by sect. 12(5 
of the B. N. A. Act, and that the new taxes raised to defray the 
expenses of the administration of justice must, of necessity, go inti) 
the Consolidated Revenue Fund of the Province. 

This might be a fair argument if the tax imposed by the 43 & 44 
Vict. c. !), was the same as that which, at the time of the confedera- 
tion, was levied under cap. 109 of the Con. Stat, of L. C, and if the 
building and jury fund had ceased to exist and been merged into 
the Consolidated Revenue Fund of the Province, but is this so in 
point of fact? The building and jury fund under cap. 109 of the 
Con. Stat, of L. C. was a local fund created for each district out if 
certain sources of revenue arising withiu the district (sect. lo). The 
tax on juilicial i)r.iceedipgs which formed part of this fund was a 
local tax, levied by local ofKcers and for local purposes (sec^. 17). 
The tax of ten cents, now under consideration, imposed under the 
39 ^'■ict. c. 8, and since its repeal under the 43 A: 44 Vict. c. 9, is a 
new tax which did not exist when tlie confederation took place. It 
h a general tax payable into the Provincial treasury and applicable 
ti) all the purposes for which the revenu'.'s of the Province may be 
required. 

There may be no provision in the B. N. A. Act to pre\ent the 
Provincial Legislatures from authorizing the raising i>f a revenue 
for local i)urposes bj* indirect ta:;atii>n, but there is one prohibiting 
them from raising by such, means a revenue for general purposes, 
and the British Parliament has made but onp exce])tion to this 
prohibition I)y reserving to the Province of New Brunswick the 
right to collect existing lumber dues, coupled with the condition 
that they should not be increased (sect. 124). This fhews con- 
clusively tliat the intentiiin of tlie Act was to deprive the Provincial 
Legislatures of the right to levy any revenue for general purposes 
by indirect taxation. 

As to the contention that the l)uilding and jury fund has been 



PRIVY COUNCIL. 



217 



Attorney- 
General 
OF Quebec 

V. 

Rbeo. 



abolished by sect. 12G of the Confederation Act and that the taxes 1883 

and revenue accruing to it were merged in the Consolidated 

Revenue of the Province, — even supposing it were so, this could 

only authorize the Provincial authorities to receive existing indirect 

taxes, but would not entitle tlie Provincial Legislatures to raise new 

taxes ^or general purposes, and this tax ot ten cents would be q. b., Quebec. 

excluded. But the simple reading of this sect. 126 shews that the T^ '■ n t 

, Dorion, C.J. 

duties and revenues which are to constitute the Consolidated 

Revenue Fund to be appropriated for the public service oi each 
Province, were those duties and revenues which before the con- 
federation belonged to each Province and formed part of its revenue, 
and did not comprise the special local funds held in trust f'>r special 
purposes, such as the building and jury fund which was held by 
the Sherifl's of each district to be applied to the repairs of court 
houses and gaols and to the payment of petit juroi's in the district, 
for the benefit of the inhabitants of the district. It is impossible 
to suppose that the Imperial Parliament could have intended by a 
general enactment such as is contained in sect. 120, to cast that 
fund into the Consolidated Revenue of the Province to be applied to 
totally different purposes, while it retained by sect. 129 the special 
dispositions of the law under which this fund was raised. 

As a matter of fact, this fund has been kept separate from the 
general revenue of tlio Province, since confederation, as it was 
before, and its existence has been expressly recogniseil by the 
Leg'slatnre liy an Act passed in 1878 amending cap. lOS of the Con. 
Stnt. of L. C. and exempting rural municipalities from contributing 
to it, on making a declaration that they did not desire that the petit 
jurors fif the municipality be paid for their services (41 Vict. q. 10). 
The provisions of cap. lOi) of the Con. Stat, of L. C. being still in 
force except as to such portions as may have been amended since 
confedeiation, it is in the power of the finvernor-Cieneral in Council, 
under sect. 19, to increase the contributions recjuirod from the muni- 
cipalities to SMpply the deficiencies in the building and jury fund. 
The eifeet of the present law, if constitutional, would be, in that 
c;ise, thai while the districts would be made to support the repairs 
of ga"ls and court houses and the payment of i>i'fit juroi's as hereto- 
fore, yet the Legislature of the Province could witlidraw from tho 
fund created for that'i)urpose the indirect taxes foiming i)art of it, 
to apply the same to th.* general purposes and wants of the Province, 
while they can only raise a revenue by direct taxation. 






1:3 



til' 



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if 

4 " 



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218 



PRIVY COUNCIL. 



Attorn ET- 

Genrral 

OF Quebec 

V. 
RiEI). 



I.i 



m 



I -:i ■■ 



1888 I cannot find that this could have been intended by the franiers 

of the Act, and being of opinion tliat the tax on the filing of txhibits 
is an indirect tax which the Local Legislature had no right to 
impose, I would have confirmed the judgment rendered by the 
Court below ; but, the majority of the Court holding a different view 
Q. B., Quebec, of the case, the judgment will be reversed. 

Dorion, C.J. j. y . 

This appeal gives rise to some embarrassment ; to my mind, how- 
ever, to little difficulty. There is a technical point to which I at 
once refer. 

The action is taken against the Prothonotary by way of a pro- 
ceeding for contempt, and the judgment condemns the Prothonotary 
to go to gaol. This is certainly irregulai. If it be a question of 
contempt, the way to bring it before this Court is by writ of error. 
Our statutes give in express terms this remedy. However, without 
tlie condemnation as for a contempt it is an order in a case, from 
which there might be leave to appeal granted by special application. 
It has not come up to us in that shape. We might, therefore, 
perhaps, dismiss the appeal without adjudicating on the important 
subject on which it was evidently the intention of the parties, 
including the Attorney-General of the Province of Quebec, to liave 
a decision. Although I think i; is a wise policy on the part of 
Courts, generally to abstain from going further in delivering judg- 
ment than is absolutely necessary to settle the differences betsveen 
the parties, still there are cases where the nature of the «iuesti(>n is 
such as to require a more ample treatment. This occurs when the 
question involved is of public interest, and where both parties have 
acquiesced in the proceedings and overlooked the technical difficulty. 
To the people of this country the settlement of questions arising on 
our statutory constitution is of the utmost moment, and the delay 
of litigation, even for a year, may have the most disastrous results, 
I think, therefore, we should be neglecting our duty if we failed to 
(leal with this case on its intrinsic merits. 

The Legislature of the Province of Quebec passed an Act (43 & 
44 Vict. c. 0) by the 9th sect, of which it was enacted : " There 
shall be imposed, levied and collected a duty of ten cents on every 
vrrit :«f summons issued out of any County Circuit Court, Magis- 
trates' Court or Commissioners' Court in the Province ; and a duty 
of ten cents shall be imposed, levied and collected on each promissory 
note, receipt, bill of particulars and exhibit whatsoever produced 



■. r 



PRIVY COUNCIL. 



219 



Attornet- 

General 

OK Quebec 

V, 

Reed. 



and filed before the Superior Court, the Circuit Court or the Magis- 1883 
trates' Court, such duties payable in stamps." 

This Act is declared to be an amendment and extension of an Act 
of the Province of Canada, 27 & 28 V?"t. c. 5, "An Act for the col- 
lection, by means of stamps, of fees of office, dues and duties payable 
to the Crown upon law proceedings and registrations." (Sect. 20.) q. b., Quebec. 
The duties levied under this Act are to be " deemed to be paj'able « j 

to the Crown." (Sect. 3, sub-sect. 2.) These last words might 

perhaps give rise to verbal criticism. It would seem by the terms 
of the B. N. A. Act that the Queen forms no part of the Provincial 
Government. Indirectly the Sovereign nominates the Lieutenart- 
Governor, but he is not the representative of Her Majesty. He acts 
by virtue of his office, and not by virtue of his commission, in this 
respect like the Governor-General or other officer administering the 
Government of Canada. But, although I think this criticism well 
founded, as a fact the old language has been continued both in 
sanctioning legislation and in carrying on those branches of adminis- 
tration which have devolved on the local Governments. I take it, 
tlierefore, that the Legislature intended, and did in effect, so far as 
it could, declare that in addition to the duties hitherto authorized 
to be levied by stamps on judicial proceedings in the Province of 
Quebec, ten cents should be charged for each promissory note pro- 
duced and filed in the Superior Court, and that this duty should be 
collected by stamps and should form part of the general revenue of 
the Province. It appears that by the 27 & 28 Vict, fees collected in 
this way for judicial purposes were credited to a particular fund, 
but they were declared to be fees payable to the Crown, and I can- 
not see that this statutory rule of accountability, it is really no more, 
can have any bearing on the question before us, except to shew that 
they were fees collected for a local object. Subsequent to the pass- 
ing of this Act of the 43 & 44 Vict by the Legislature of the Pro- 
vince of Quebec, the respondent produced and attempted to file a 
promissory note, without any stamp of ten cents being affixed. The 
Prothouotary refused to take it without the stamp, and the respon- 
dent refused to pay the duty on the ground that the statute was 
beyond the powers of a Local Legislature. It is contended that the 
revenues to be collected in the Province of Quebec under the 27 & 
28 Vict. c. 6, do not belong to the Government of the Province, or, 
as I understand it, that the Government of Quebec may not apply 
the proceeds of these duties to its general purposes, but that the 
duties so fixed prior to confederation, cannot be altered or, iTt all 




> ^1 



W^SSF 



■^ 



220 



PRIVV COUNCIL. 



Attorney- 
Gkneral 

OF Ql'HBEC 

Reki). 



u 



i i 



1883 events, cannot be extended. A rule producing results so obviously 

inconvenient naturally challenges scrutiny. It is difficult to realize 

the idea that the Legislature should have intended to charge the 

local Governments with the support of the admini.stration of justice 

and at the same time to deprive them of their power to extend the 

(i. B., t^iebec. means then recognised by law of providing tlierefor. The argument, 

X, T however, i.s this : The local Government have only two means of 

Ramsay, J. ' •' 

— - raising money by taxation ; one is (not by licenses, as I have already 

observed in the case of The Corpm-ation of Three Rivers v. Suite (1), 
but) by legislation with relation to matter3 coming within the class 
of shop, saloon, tavern, anctio- jr and other licenses, in order to 
the raising a revenue for provincial, local or municipal purposes, 
and by ''direct taxation within the Province" for a like purpose. 

Now, it is said this ten cent stamp is not a license, and it is not 
direct taxation. It is not pretended that it is a license, and, even 
if it were admitted that it was not direct taxation, I do not think 
the judgment sustainable. There is, however, a case of Angers v. 
The Queen Insurance Co. (2), which, it is contended, implies that a 
duty being subject to collection by means of a stamp, makes it neces- 
sarily indirect taxation. It lias been said to I'everse the judgment 
of the Court below was to overrule the ruling of the Privy Council 
in Aii.'jersx. The Qnaen Instiraiice Co. (2). I am not prepared (-o 
cany the authority of precedent so far as to say that I should be 
governed by a s'ligle decision of a higher Court, which .appeared to 
me to be clearl; aijainst principle, even if that Court drew its inspir- 
ations fr(jm the same sources that we do. Still less should I be 
bound by a single aivtt of the Privy Council, which clearly mis- 
interpreted our law. This does not seem to be a revolutionary or 
turbulent mode of performing one's duty. To this I may add that 
so soon as the Privy Council lays down as a proposition of law, the 
issue being clearly before them, that the local Goverinnents have no 
p nver to tax otherwise than by licenses and direct taxation, and that 
direct taxation moans certain taxes, and no more, then-I shall accept 
the decision as conclusive, and conform my judgments to it, although 
I know that its eft'ect must be to break up confederation. But I am 
not going to discuss anew or ([uestion what was then decided, but 
critically I . examiie what really was decided, and not what in the 
gioas may seem to have been said. It appears to me that the report 
examined does not suppnrt the view taken by the learned Chief 

(I) 51^. N. 3.S0; ante, vol. 2, i.. 280. (2) 3 App. Cas. 1090 ; ante, vol. 1, p. 117. 



II 



PRIVY COUNCIL, 



221 



Attobnkt- 

General 

OF Quebec 

V. 

TIbxd. 



Justice, but only that the duty sought to be collected in that case, 1883 

by a so-called license, was in reality an ordinary Stamp Act, and 
indirect taxation. 

Their Lordships say : — " The single point to be decided upon this 
[the effect of the 2nd sub-section of the 92nd section] in whether a 
Stamp Act, — an Act imposing a stamp on policies, renewals, and Q b., Quebec, 
receipts, with provisions for avoiding the policy, renewal or receipt, Ramsay J 
in a Court of Law, if the stamp is not affixed, — is or is not direct •— 
taxation ?" It is true they say afterwards, in referring to the Eng- 
lish and American decisions mentioned by Mr. Justice Taschereau, 
" they (the decisions) all treat stamps either as indirect taxation, or 
as not being direct taxation. " That is, these cases decide that the 
particular Stamp Act referred to in each case was indirect taxation, 
obiter dicta, precisely as the case of Angers v. The Qneen hisurance 
/I) would be an obiter didnm, if it decided what it is contended it 
did. No one can seriously contend as an abstract question, I should 
think, that the form of collection, the evidence of payment, can 
determine as to the nature of the impost. If there was a poll-tax 
uD each elector and the law said that each elector should take a 
receipt therefor on paper, bearing a penny stamp, it would hardly 
be said that the penny stamp was a different kind of taxation from 
the poll-tax. So far as my recollections carry me, there is not the 
unanimity of opinion attributed to the economists as to the defini- 
tions of direct and indirect taxation. It seems to me they are 
generally dealt with as relative rather than as positive terms. They 
are used to express economic results. One of the best known 
rules is that taxation is direct when it i* paid by the party who 
is impoverished by it. Thus, a duty on imports is regarded as 
indirect taxation because the consumer and not the importer usually 
bears the burthen. But if the consumer imports his own boots 
the tax is as direct as it can be. Again, if this rule were dog- 
matically true, it would include a license to shoot game, which might 
very well be accorded by a stamp. 

It is very true that the term direct taxation being used in a 
statute in a positive sense, it is the particular function of Courts by 
their decisions to give it a positive meaning. 

In dealing with this tenn, the operation is one of considerable 
difficulty, and we must take care in perfoi ming it, not to go outside 
our commission inadvertently. We have to decide what direct taxa- 

(1) 3 App. Cas. 1090; ante, vol. 1., p. 117. 







m 







wwy 



a ,' 






222 



PRIVV COUNCIL. 



iii il i 













{ 
1 
t 




1 

: 


■ 

i 







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M\: 




hi 


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188a 

Attoknky- 
(Jkxku.vi, 

OK QUKItKC 

c. 
Rkkd. 

^. B., < Quebec. 

Ramsay, J. 



tion is within the meaning of the Act, but there is absolutely no 
warrant in the B. N. A. Act for our rlecidinj^ tliat the hjcal Govern- 
ments are prohibited from collecting taxes by one fnim or another. 
As to the license it is different ; the form there is material. It 
therefore appears to me to be indubitable, that we have authority 
to say that direct taxation in the Act means a poll or a property and 
income tax and no more, but we have no authority to say how it 
shall be levied. While generally admitting the utility of reference 
to writers on political economy, judgments, dictionaries and cyclo- 
poedias for such enlightenment as they may furnish, it seems to me 
that there are other guides to interpretation quite as safe. As an 
example, I may (^uote from a still more recent decision of their 
Lordships the following sentence : — " It becomes obvious as soon aa 
an attempt is made to construe the general terms in which the 
classes of subjects in sections 91 and 92 are described, that both 
sections and the other parts of the Act must be looked at to 
ascertain whether language of a general nature must not by neces- 
sary implication or reasonable intendment be modified and limited." 
(The Citizens Insurance ComjuDiij v. Parsons) (1). 

I do not think it necessary to pursue the criticism further on this 
point, for the power of the Local Legislature to enact the 43 & 44 
Vict, appears to me to be beyond question, even if we were to hold 
that the tax under consideration was indirect taxation. We have, 
therefore, happily, nothing to limit or to modify. Sub. -sects. 14 and 
16 give the right to the Legislature of the Province to pujs the law 
in question. 

In proceeding to explain this proposition, it is proper to make 
two preliminary remarks : First, that the power of the local Govern- 
ment to tax is nowhere conhned to licensis and to direct taxation, 
as has been assumed. They are specially permitted to impose these 
taxes ; that is all ; but this diflfers essentially from a prohibition to 
impose any other taxes. Secondly, the sub-sections of sect. 92 
must be read with the general heading to avoid misconception. 
Thus read, sub-sect. 14 enables the local Governments to make 
laws in relation to " the administration of justice in the Province, 
including the constitution, maintenance and organization of Pro- 
vincial CourlH, both of civil and of criminal jurisdiction," etc. Is 
not the law int^nigned a law for the maintenance of justice in the 
Province ? — nay more, a law modelled on the law existing at con- 



(1) 7 App. Cas. 96, 110; ante, vol. 1., p. 205. 



PRIVY COl NCIL, 



223 



Attounky- 

Gknkral 

ok qukueo 

V. 

Reko. 



ir '..ration for its luainttnance ? We have held in Corporation of 1888 
Tlirec Jiivers v. Sidte (2), tliat municipal powers were to be delimited 
by what then existed. Is it not a sin)ilar principle we now invoke i 
Again, I would ask is this tax for the performance of a duty by a 
local functionary not a matter of a merely local nature in this Pro- 
vince ? Does it conflict with any Dominion power / Can it be con- q. b., thiebec. 
tended for an instant that the power to raise money by any mode or „ j 

system of taxation can be held to s'gnify that the Dominion Parlia- 

nient could raise money on the duties to be performed by local 
officers ? I have said that it has been assumed that the Local 
Legislature had only power to impose taxes by way of direct taxa- 
tion and by license. I mean assumed in discussic^n, for the practice, 
as is frequently tlie case , is more logical than the didactic utterances 
reganling it. As an example, a turnpike on a local road is a tax 
precisely of the same kind as this. It is an exaction for a service 
rendered. So, when the Government exacted passage money on the 
North Shore Railroad it was a tax of a like kind, and I may add, 
moreover, it was levied by a stamp. 
I am to reverse. 



make 
lovern- 

(these 
lion to 
let. 9-2 
Option, 
make 
Jvince, 
Pro- 
le. I« 
|n the 
con- 



Cross, J. : — 

The appeal in this case is taken from a judgment declaring absolute 
a rule taken against the Prothonotaries of the Superior Court at 
Montreal, requiring them at the instance of Reed, the plaintiff in 
this cause, to put on file as an exhibit a promissory note tendered 
to them for that purpose by the plaintiff without the revenue stamp 
of the value of ten cents being thereto affixed, as required by the 
Provincial Statute 43 & 44 Vict. c. 9. 

The Attorney-General intervened to maintain the right of the 
Prothonotaries to exact the affixing of the stamps, as a condition 
precedent to the filing of the promissory note ; which right was 
dt nied by Reed. 

This b/ought into question the au hority of the Provincial Legis- 
lature to impose this tax. 

The questions that arise under the B. N. A. Act of 1867, Imperial 
Statute, 30 Vict. c. 3, are numerous and embarrassing as well as of 
freqvient occurrence. 

It is not possible in all cases to reconcile the powers whereby 
sects. 91 and 92 are attributed respectively to the Dominion and 



(1) 5 L. N. 330; ante vol. 2., p. 280. 



H! 





1 



224 



PKIVV COUNCIL. 



Attorney- 
General 
OF Quebec 

V, 

Rbei). 



I Hi! 



1883 Provincial Legislatures, tier is it easy, apart from the question of 

coijflict, tj determine the extent of the particular powers. 

Before invoking considerations of a more extended character, 
embracing notions of a general policy, presumed intention, or other- 
wise, I think it is the duty of the judge to whom a like question to 
Q. B., Quebec. *h® present is submitted, to inquire how far a solution of the difti- 
„ J culty can be reached within the terms of the Statute itself, applying 
to this task his appreciation of the context of the diflferent pro- 
visions that mcay bear upon it, not omitting the desirability of 
adopting, when practicable, such a construction as will facilitate and 
give effect to the operation of the law, so as to secure as much as 
possible the attainment of its objects. 

Previous to confederation there existed various special funds per- 
taining to the Revenue Department of the then Province of Canada, 
raised by legislative authority for particular purposes, requiring 
separate accounts thereof to be kept in the financial department of 
the Government. Among these may be mentioned the building 
and jury fund for Lower Canada, as a contribution to which, under 
the authority of sect. 32, cap. 9 of the Con. Stat, of L. C. the 
Governor was authorized by any order, or orders in Council, to be 
from time to time made for such purpose, to impose such tax or 
duty as he should see fit, on any proceedings in any of the Courts 
in any of the districts in Lower Canada. 

By Statute of the Province of Canada, 27 & 28 Vict. c. 5, the fees 
under the tariff, made or to be made under the provisions of the 
last previous'y mentioned Act, are made collectible by stamps. 

By sub-sect. 14 of sect. 92 of the B. N. A. Act of 1867, there is 
enumerated as among the exclusive powers of the Provincial Legis- 
latures " the administration of justice in the Province, including the 
constitution, maintenance and organization of Provincial Courts, 
both of civil and of criminal jurisdiction, and including procedure iii 
civil matters in those Courts." 

It was to be reasonably expected that this duty should not devolve 
upon the Province without according to it such revenue as had been 
specially applicable to that particular purpose, such as the building 
and jury fund. Accordingly, in the fourth schedule annexed to 
the Act, the building and jury fund is enume'.'ated among the 
assets to be the property of Ontario and Quebec conjointly. 

By sect. 65 of the Statute it is enacted, that " All powers, authori- 
ties and functions which, under any Act of the Parliament of Great 
Britain, or of the Parliament of the United Kingdom of Great Britain 



PRIVY COUNCIL. 



225 



of 



the feea 
of the 

fhere is 

Legis- 

^ng the 

;!ourt8, 

lure in 

devolve 
Id been 
lilding 
led to 
ig the 

ithori- 
Great 
Britain 



Attohnky- 

Genkkal 

of qukbeo 

V. 

Rbkd. 



ami Ireland, or of the Legislature of Upper Canada, Lower Canada, 1883 

or Caiifida, were or are before or at the union, vested in or exercise- 
able by the respective Governors or Lieutenant-Governors of those 
Provinces, with the advice, or with the advice and consent, nf the 
ri'spective Executive Councils thereof, or in conjunction with those 
Councils, or of any number of members thereof, or by those Gover- q, b., Quebec. 

nors or Lieutenant-Governors individually, shall, as far as the same m t 

•" ' Cross, J. 

are capable of being exercised after the union in relation to the Gov- — =- 

ernment of Ontario and Quebec respectively, be vested in, and shall 

or may be exercised by, the Lieutenant-Governor of Ontario and 

Quebec respectively, with the advice, or with the advice and consent 

of or in conjunction with, the respective Executive Councils, or 

any members thereof, or by the Lieutenant-Governor individually, as 

the case requires, subject, nevertheless (except with respect to such 

as exist under Acts of the Parliament of Great Britain, or of the 

Parliament of the United Kingdom of Great Britain and Ireland) to 

be abolished or altered by the respective Legislatures of Ontario and 

Quebec." 

By sect 129 all law Courts of civil and criminal jurisdictions, legal 
commissions, powers and authorities, and all officers, judicial, admin- 
istrative and ministerial, are continued as if the union liad not been 
made ; " subject, nevertheless (except with respect to such as are 
enacted by or exist under Acts of the Parliament of Great Britain, 
or of the Parliament of the United Kingdom of Great Britain and 
Ireland), to be repealed, abolished or altered by the Parliament of 
Canada, or by the Legislature of the respective Province, according 
to the authority of the Parliament or of that Legislature under this 
Act." 

From the foregoing I conclude that the regulation, modification, 
increase or diminution of the tariflF of taxes on legal proceedings as 
a contribution to the building and jury fund was vested in the Gov- 
ernoi-s of Canada in Council, and by the operation of the B. N. A. 
Act the power passed to and became vested in the Lieutenant-Gov- 
ernor of Quebec in Council, who, up to the time of the passing of 
the Quebec Statute 43 & 44 Vict. c. 9, could have lawfully imposed 
the tax now brought in questioii. 

Under the authority of sect. 65 of the B. N. A. Act the 
Legislature of Quebec had power to impose and did impose legally 
the tax in question. 

By sect. 126 such portion of the duties and revenues, over which 
the respective Legislatures of Canada, Nova Scotia and New Bruns- 



:■•'."<!! 



»( ■M'H 



w 



226 



PRIVY COUNCIL. 



Attoknky- 

Gknebal 

OF Quebec 

V. 

Reed. 



1888 wick had before the uiiiun power of appropriation, as are by the said 

Act reserved to the respective GovemmentL or Legislatures of the 
Provincds, and all duties or revenues raised by them in accordance 
with the special powers conferred upon them by said Act in each 
Province, are to form one Consolidated Revenue Fund, to be 
Q. B., Quebec, appropriated for the public service of the Province. 

Cross" J There is no other than tliis Consolidated Revenue Fund out of 

which the Courts can be maintained, or appropriations made for 

building and maintaining Court Houses and Gaols. And 1 can see 
no valid reason why the tax in question should not be levied and 
pass into this fund, out of which appropriations must be made to 
sustain the object for which the tax was originally imposed. 

It is to be presumed that it will be applied and appropriated by the 
Legislature in the manner antl for the purposes to which the building 
and jury fund, whereof it formed a part, was designed to be applied, 
but over that the Court can have no control — it falls to be determined 
by the Legislature as a matter of public policy within their jurisdic- 
tion. The question to be decided by us is simply whether the 
power remains with the Legislature of the Province to lawfully levy 
the tax in question. 

I think it does so remain. 



! 





■ 




i 


M 


iL. 



Judgment of the Superior Court. 

Mackay, J. : — 

These proceedings were commenced in May, 1881, by a Rule 
taken by the plaintiflf against the Prothonotary to have him com- 
pelled to receive and mark "filed " the promissory note upon which 
the plaintiff's action is based. The Prothonotary has refused to file 
that note because it has not upon it a ten cent law stamp. The 
Prothonotary, answering the Rule, says that by sect. 32, of cap. 
109, Con. Stat, of Lower Canada, it is ordered that the Govemor-in- 
Council may impose taxes on law papers and proceedings ; that by 
the 27-28 Vict. c. 5, it was ordered that stamps should stand instead 
of the money taxes of the cap. 109 before referred to, or that might 
be imposed in any Order-in-Council under it ; that by the -'^Ist 
Vict. c. 2, of Quebec, the word stamps or stamp is defined to mean 
all stamps issued under cap. 5, of 27-28 Vict, or any Order-in- 
Council of the Governor of the late Province of Canada, or of the 
Lieut. -Governor of Quebec, or under this Act (of 31 Vict.) or any 



PRIVY COUNCIL. 



227 



Attornrt- 

Gkneral 

ok qurbeo 

V. 

Rert). 

Suj)erior C, 
(Quebec. 



Act of this Legislature ; that by sect. 12 of 27-28 Vict. c. 5, it is 1883 
ordered that no paper or exhibit on which tax or duty to the Crown 
is payable shall be received by any Court or officer until stamped ; 
that by sect. 10 of 31 Vict. c. 2, also, it is ordered that no paper 
upon which stamp ought to be, shall be received by any public 
officer ; that by the Act of ^Quebec, passed in the 39th year of Vict. 

c. 8, it was said and is ordered that a tax of ten cents shall be 

payable to the Crown for the use of the Province upon each exhibit Mackay, J. 
produced or offered in the Superior Court, etc., and that all disposi- 
tions of law applicable to formal duties or taxes such as this should 
apply to the tax or duties imposed by this Act of 39 Vict. ; that by 
the Act of Quebec, 44 Vict. c. 9, all these Stamp Acts have been 
amended and recast, and a tax of ten cents imposed upon each 
exhibit offered to the Superior Court, and order made that no 
exhibit shall be received unless stamped. Then a proclamation by 
the Lieut.- Governor of Quebec is vaguely set forth, by which it 
was ordered by him and the Council that all exhibits should be 
stamped (when this was published is not stated, nor is it stated from 
™hat date the order is to take effect). That they (the Prothonotary) 
are only doing their duty in asking a ten cent stamp to be put upon 
the promissory note offered as an exhibit by the plaintiff ; that the 
plaintiff has no right to get the order he seeks against them, and 
they conclude for the discharge of the rule. There is answer by 
the plaintiff that the Quebec Legislature statute law, by which the 
Prothonotary would justify the claim of a ten cent stamp from 
plaintiff, was and is rdtra vires of the Legislature, not warranted 
seeing the B. N. A. Act of 1867, that the ten cent tax or stamp 
■duty is not authorized by that Act, and is not direct but indirect 
taxation, and therefore illegal, and so the rule taken must b& 
absolute. The Attorney-General of Quebec has intervened in the 
case to support the Prothonotary, and his claim to have that ten 
cent stamp before filing the promissory note referred to. For 
reasons of intervention he repeats very much the arguments of the 
Prothonotary, but commences by alleging formally that the adminis- 
tration of justice is left to the charge and under the control of the 
Provincial Legislature ; that this administration causes great expense, 
and necessitates the employment of officers and servants, all of 
whom have to be paid by the Provincial Governments ; that parti- 
cularly the Government is obliged to employ persons to have care of 
all documents produced before the different Courts of law, and that 
by law these persons are paid out of the Consolidated Revenue 



i-m 



228 



PRIVY COUNCIL. 



A'lTtJKNKY- 

(Jbnkhal 

OK (^UKBKC 
V, 

Rkki). 

Superior C, 
(Quebec. 



11 



II 


i 


i ; 


t 


1 I'' 


! 


1 ! ■ 
J 


i 



1883 Fiuicl of the Province. The plaintiff answers the Attornoy-rrenural 

very much as ho does the Prothonotury ; lie adds some allo{,'ation8, 
for instance, this one, that the ten cent ta.v upon exhiliits demanded 
from i)laintift' has no connection with the fees or salaries of the Pro- 
thonotaries or others employed in the Courts. Having thus fully 
stated the pleadings, I observe that the tax of ten cents on exhibits 
was first imposed by the 8!) Vict. c. 8, of Quebec, entitled " An Act 
Mackay, J. to aid the grant for the purposes <if the administration of justice." 
Its first section imposes a duty of ton cents, payable to the Crown, 
for the uses of the Province, to be levied on each receipt, bill of 
particidars and exhibit whatsoever, produced before the Courts. 
By its second section the duty is ordered to form part of the Con- 
solidated Revenue Fund of the Province. These two sections of the 
39 Vict, have been repealed by the -13-44 Vict. c. i), of Quebec, 
entitled " An Act to amend and consolidate the different Acts 
therein mentioned, in reference to stamps." Its sect. !) again 
enacts the duty of ten cents on bills of particulars, and exhibits, 
produced before the Courts. The moneys levied fall, by the 31 Vict, 
c. 9, to the Consolidated Revenue Fund. The 43-44 Vict. c. 9, 
•orders that it and the 27-28 Vict. c. 5, of the late Province of 
Canada, as thereby amended, shall be read together as one Act. 
This 27-28 Vict, authorized stamps to be issued by order of the 
Governor-in-Council, and the provisions of it are ordered to extend 
to the taxes and duty imposed by the 32nd sect, of cap. 109 Con. 
Stat. L. C, "so long as such fees continue to form part of the 
building and jury fund, or of the Officers of Justice Fee Fund." 
Under the constitutional Act, the B. N. A. Act of 1867, the Pro- 
vinces may not tax, or raise revenue, just as they please. Sub-sect. 
2 of sect. 92 of it only permits direct taxation in order to the raising 
of a revenue for Provincial purposes ; a later sub-section allows also 
shop, saloon, tavern, auctioneer and other licenses in order to the 
raising of a revenue for provincial, local and municipal purposes. 
The Imperial Parliament has designedly laid specific restrictions 
upon the taxing power of the Local Legislatures. It has not 
abandoned the taxing power to their mere will. So the question, 
What is lawful taxation / may always be brought before the Courts 
and will have to be deci<Ied ultimately by the judiciary. It has 
been argued that the ten cent duty is "direct taxation." If it be 
that, it has been well enough imposed. What is direct taxation ? 
Its prominent feature is that it is exigible from, and is to be borne 
by him who immediately pays it ; a tax which the person first paying 



PRITY COUNCIL. 



229 



ArrouNKY- 

(jiKNGUAL 
OK t^UKBEO 

V. 

Reki). 



Mackay, J, 



it uiay charge over to oi- against any other is an indirect tax. 1883 

Stamp diitioH on law papers anil proceedings are expressly called 
indirect taxes by almost all the writers on political economy, by 
all, in fact, except one, Mr. Craig, in so far as I have been able to 
discover. He wrote seventy odd years ago. It has been said lor 
the Attorney-General that tlie Local Legislature charged with the Superior C,, 
administriition of justice can impose any tax in order to provide for *^ "*' °' 
that administration. But it is not so ; fur, as .said before, the Local 
Legislature can only tax as by the B. N. A. Act. The framers of 
that Act knew the import of words. They knew what the power of 
taxation was and means. They give power to tax "by any mode or 
system," to the Uominion Parliament. Our condition would have 
been intolerable had like p v)wer been conferred upcjn the Local 
Legislatures. So the power of these is limited de.signedly, as I 
have said before. It has also been said that this stamp tax might 
havo been imposed by an Order-in-Council, under Con. Stat. L. C, 
c. 109, sect. 32, entitled ''An Act respecting Houfcs of Correction, 
Court Houses and Gaols." But it has been imposed, not by the 
Lieut. -Governor-in-Couticil, but by another body, the Legislature, 
and its i»ooeeds are to go, not to the building and jury fund, but 
to the Consolidated Revenue Fund ! The question before me is as 
to the power of the Legislature, not of the Govemor-in-Council. I 
hold the stamp duty in question to involve not direct, but indirect, 
taxation, and that the Legislature of Quebec in imposing it has 
exceeded its powers. This stamp duty does not answer the descrip- 
tion given of "direct taxation," and is no more such than was the 
one on the policies of insurance under 39 Vict. c. 7, of Quebec ; (1) 
so the rule taken by the plaintiff must be made absolute, and the 
intervention is dismissed. 



(1) [Sec Attorney-General for Quehec v. Queen Ins, Co., 3 App. Gas. 
1090;a«<e, vol. 1., p. 117]. 



I'.fll 



i-;i 



„- i' 'J 



t k! 



m 



l.l 



m 



230 



SUPREME COURT OF CANADA. 



1883* 



SUPREME COUItT OF CANADA. 
Alphonse Poulin Appellant ; 



AM) 



March 5. 

I8g4« The Corporation of Quebec Respondent. 

e/ ruary ■ . q^^ appeal from the Court of Queen's Bench for the Province of Quebec 

[Reported 9 Can. 8. C. R. 185.] 
Municipal Instituiions — Regulation of mle of liqiiors — 4^-43 Vict. 

C-. 4, Q. 

The Provincial Legislatures have authority to prohibit or regulate 
the sale of liquors in saloons or taverns on Sundays or at 
special times. 

The S+atute 42-43 Vict. c. 4 (Quebec) which vequires houses in 
which spirituous liquors etc. are sold, to be closed during the 
whole of Sunday and on every other day between 11 p.m. and 
5 a.m. is valid, (Ritchie, C. J., and Strong and Fournier, JJ.) 

[186] Appeal from a judgment of the Court of Queen's 
Bench for the Province of Quebec (Appeal side) (1). The 
following case w&u submitted to the Supreme Court of 
Canada. 

"At its session of 1879, the Legislature of Quebec 
passed an Act containing the following enactments : 

" ' Every person licensed or not licensed to sell by retail 
in quantities less than three half pints in any city, town 
or village whatsoever, spirituous liquors, wine, beer, or 
temperance liquors, shall close the house or building in 
which such person sells or causes to be sold, on any and 
every day of the week from midnight until five o'clock in 
the morning, and during the whole of each and every 



! ■ -■ 



■ fresent :— Ritchie, Co., and Strong, Fournikr, Hknry, Tasohkrkau 

and GwYNNE, JJ. 
(1) 7 Quebec Law Rep. 337 ; post, p. 237. 



SUPREME COURT OF CANADA. 



231 



Sunday in the year ; and during the same period, no i883-4 

person shall sell, or cause or allow to be sold or delivered, pIj^iN 

in such house or building, or in any other place, spirituous „ ^^ 

* ■' r ' r Corporation 

liquors, wine, beer, or temperance liquors, the whole ok Quebec. 
under a penalty for each and every infringement oi the Statement. 
present provisions, of a fine not less than thirty dollars 
and not exceeding seventy-five dollars and costs, and in 
default of payment of such fine, to an imprisonment for a 
period not exceeding three months in the common gaol of 
the district in whi» h the said infringement occurred.' 

" On the 18th of January, 1880, the appellant was, and 
had been for some time before, keeping a restaurant 
within the limits of the city of Quebec. 

"Being prosecuted by the respondent before the 
Recorder's Court of the city of Quebec for infringement 
of that statute, he pleaded to the jurisdiction of the 
court, and especially the unconstitutionality of the Act 
as being ultra vires of the Legislature of Quebec. He 
was, nevertheless, on the 17th of February, 1880, con- 
demned to pay a fine of $40 and $1.65 costs. 

" The appellant sued out and obtained a writ of pro- 
hibition to rvdvent execution of that judgment. 

"It was proved in the case, that on the day [187] 
mentioned in the conviction, viz., the 18th of January, 
1880, the appellant was keeping a restaurant within the 
limits of the c'ty of Quebec, where he used to retail 
spirituous liquors in quantities less than a half pint, 
and that, although the said day was on k^unday, he had 
not kept his establishment closed. 

" On that proof the Superior Court quashed the writ 
of prohibition." 

F. Langelier, Q. C, for appellant. This appeal in- 
volves the decision of two questions of law : 1st. Can a 
Local Legislature pass a law prohibiting the sale of spirit- 











IP ^ 

i : ■■ 






1 


1 
1 



232 



SUPREME COURT OF CANADA. 



POULIN 

V. 

COKPOHATION 

OF QUEBKO. 



!^t 



1883-4 uous liquors on Sundays and at certain hours of other 
days ? 2nd. Does the statute of Quebec, 42-43 Vict. c. 4, 
s. 1, punish the selling only of liquors within the pro- 
hibited time, or also the opening of the establishment 
Argument, where they are sold ? 

It is now beyond all doubt that Local Legislatures can- 
not totally prohibit the sale of such liquors. This Court, 
in the case of the City of Fredericton v. The Queen (1), 
has laid down as a rule. 1st. That the power to eaact 
such a prohibition cannot belong to both the Local Legis- 
latures and the Parliament of Canada. 2nd. That it be- 
longs to the Parliament of Canada; and that ruling has 
been confirmed by the Privy Council in the case of 
Russell V. The Queen (2). 

There would be no difficulty, therefore, if the statute in 
question contained a complete prohibition ; but it is con- 
tend-^.d that the ruling of this Court cannot apply to it 
because it does not prohibit, but only restricts the sale of 
spirituous liquors. 

This is a mere quibble. A restriction is a partial [188] 
prohibition ; in the present case the prohibition is for Sun- 
days and certain hours of other days. If this reasoning was 
to prevail, nothing would be easier for a Local Legislature 
than to encroach upon the exclusive power of the Parlia- 
ment of Canada to prohibit such trade ; all they would 
have to do would be to prohibit the sale at all times, 
save a few minutes every day, or every week. 

It has been contended that such a statute is within the 
class of local statutes, or of statutes concerning municipal 
institutions. 

Even were that true, it would not affect the question at 
issue. That statute unquestionably deals with and regu- 
lates a certain trade or commerce. Therefore, according 



(1) 3 Can. S. C. R., 505, 574 ; ante vol. 2, p. 27. 
(2) 7 App. Cas. 829 ; ante vol. 2, p. 12. 



SUPREME COURT OF CANADA. 



233 



TOULIN 

V. 

COUPORATION 

OF QUEBKO. 



to the decision, City of Fredericton v. The Queen (1), it 1883-4 
cannot be considered as being within the powers of Local 
Legislatures. 

But it is not true that the statute in question is a mere 
municipal regulation, or a law of a local nature. It is Akgumknt. 
admitted to be intended to repress intemperance, to 
prevent drunkenness ; therefore its object is one of 
general interest ; intemperance and drunkenness are 
just as much evils in Halifax as in Quebec. 

If the object of the law is of general interest, are the 
means ena':;ted for that purpose of a local nature ? Not 
at all ; those means consist in compelling those who sell 
spirituous liquors by retail, to close their establishments 
at certain times, and in preventing them from selling 
within certain hours. Now there is nobbing local in 
those means ; they would be just as effective at Winnipeg 
as at Charlottetown : Russell v. The Queen (2). 

The power to enact such a law is not included in the 
power given to Local Legislatures to regulate municipal 
institutions. The olject of such institutions is to give 
to each locality the particular regulations required [189] 
by its local wants. No municipal institutions would be 
needed if the making and keeping of roads, bridges, the 
prevention of abuses prejudicial to agriculture, could be 
regulated in the same manner all over i country. But 
they are necessary on account of the fact that a special 
regulation is required for each locality. 



i 






n'i; 



C. P. Pelletier, Q. C, for respondent : 

[190] Before the other courts, the appellant has con- 
tended not only that to establish an offence it would have 
been necessary for the respondent to prove a sale of liquors* 
but also that the Legislature of Quebec had no right to 
prohibit the sale of intoxicating licjuors on Sundays. 

(1) 3 Can. S. C. R. 605; ante vol. 2, p. 27. (2) 7 App. Cas. 829 ; ante vol. 2, p. 12. 



W: 



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■^~ 



if 

i r 




ij 


i 


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1 ^ 

i ■ 

\ i ■ 





234 



SUPREME COURT OF CANADA. 



POULIN 

V. 

Corporation 
OP Quebec. 



1883-4 As the complaint in this case is only "for not [191] 

having closed," and not for " having sold," if the statute 
is interpreted as making an offence of the mere fact of 
"not closing," and if the conviction against the appellant 
Argument, i? found to be valid, it is of little moment, for the ends of 
this case, to consider the question of the prohibition of 
selling liquor on Sundays. 

However, as that incidental question has been strongly 
dwelt upon before the other courts, and as the other 
courts have considered it with much attention, it may be 
convenient also to consider it now. 

Although the Parliament of Canada under the power 
given to it to regulate trade and commerce alone has the 
power to prohibit the trade in intoxicating liquors, yet 
the Provincial Legislatures, under the power given to 
them, may for the preservation of good order in the 
municipalities which they are empowered to establish 
and which are under their control, make reasonable police 
regulations, and may to some extent interfere with the sale 
of spirituous liquors. 

The provisions of the Provincial statute 42-43 Vict- 
c. 4, ordering houses in which spirituous liquors, etc., are 
sold to be closed on Sundays and every day between 
eleven o'clock of the night until five of the clock of the 
morning, are police regulations within the power of the 
Legislature of the Province of Quebec. 

The reasons for arriving at this conclusion are fully 
stated by Chief Justice Meredith in the case of Blouin v. 
The Corporation of the City of Quebec (1), and I rely upon 
that decision. 



Ritchie, C. J. : — 

1 cannot see how it can be said that prohibition will not 
lie without first determining whether the Act is ultra vires 

(1) 7 Quebec Law Rep. 18 ; ante vol. 2, p. 868. 



SUPREME COURT OF CANADA. 



235 



[192] or not, for if the Act is ultra vires, then I can see 1883-4 

no reason why prohibition would not be a proper remedy, p^tv 

because there could then be no pretence that the Re- ^ ''• 

\ Corporation 

cortler's Court could have jurisdiction over an offence of Quebec. 
alleged to be created by a statute which had no legal Ritchie, c. J. 
existence ; but holding the Act to be intra vires, I fully 
appreciate the position taken by Mr. Justice Ramsay, 
that the Recorder's Court having jurisdiction over the 
subject-matter legislated on, however badly it may judge 
it cannot be stopped by prohibition, on the pretext that 
it has misconstrued the Act. 

Mr. Justice Ramsay clearly acted on this view, for 
before holding that prohibition would not lie, he expressly 
held that the Local Legislature had authority to prohibit 
or regulate the sale of liquors in saloons or taverns on 
Sundays, or at particular times, as being purely a matter 
of police regulation, and consequently within the powers 
of municipal corporations. 

When, in the case of Regina v. Justices of Kings (1), 
I was called upon to adjudicate on the right of the Pro- 
vincial Legislatures to prohibit absolutely the sale of 
spirituous liquors, and I arrived at the conclusion that 
the legislative power to do this rested with the Dominion 
Parliament, I advisedly and carefully guarded the enuncia- 
tion of that conclusion in these words : " We by no means 
wish to bo understood that the Local Legislatures have 
not the power of making such regulations for the govern- 
ment of saloons, licensed taverns, etc., and sale of spirit- 
uous liquors in public places, as would tend to the 
preservation of good order and prevention of disorderly 
conduct, rioting or breaches of the peace. In such cases, 
and possibly others of a similar character, the regulations 
would have nothing to do with trade or commerce, but 
with good order and local government, matters of munici- 



:!(•!'! 



' I 



i' 



■.iii 



ii'!| 



iiili 



V I t 






(1) 2 Pugsloy 535 ; ante vol. 2, p. 499. 



r 




^^^ 


1 










r 

: 

t ! 






1 

■ ! i 

! 





236 



SUPREME COURT OF CANADA. 



POUIJN 

V. 

OOUPORATION 

OF QUKBEO. 



1883-4 pal police and not of commerce, and which municipal 
institutions are peculiarly competent to manage and 
regulate." 

[193] I still think, as I did then, that a provision such 
Ritchie, C. J, as sect. 1, of the 42-43 Vict. c. 4, Quebec Act, is within the 
legislative authority of the Provincial Legislature, as being 
sim[)ly a local police regulation, and which the Local 
Legislature has, a3 incident to its power to legislate on 
matters in relation to municipal institutions, a right to 
enact. 

As at the time of the passing of this Act and at the time 
of the committing of and conviction for the alleged breach 
of the law, there was no Dominion legislation contraven- 
ing in any way the provisions of this Provincial law, it 
is not necessary, for the purposes of deciding this case, to 
inquire or determine if, and in what particulars and to 
what extent, the legislation of either will prevail over 
that of the other, when the Dominion Parliament is legis- 
lating for the peace, good order, etc., of the Dominion — or 
on the subject of trade and commerce in connection with 
the traffic in intoxicating liquors — should the Dominion 
legislation conflict with the Provincial. 

In the view I take of the inapplicability of the remedy 
by prohibition, the Act being, in my opinion, intra vires, 
it is unnecessary to express any opinion as to the con- 
struction of the first sect. 42-43 Vict. c. 4, though I by 
no means wish it to be understood that I think the con- 
struction placed on the statute by the Recorder's Court 
incorrect. I merely express no opinion on it, as not being 
necessary for the determination of the case before us. 



1 1: 



1:1 



Strong, J. : — 

I agree wiL the Chief Justice that the attempt to 
impeach the constitutional validity of the statute under 
which the appellant was convicted, as being ultra vires 



SUPREME COURT OF CANADA. 



237 



m 



municipal 
lage and 



ision such 
vithin the 
e, as being 
the Local 
igislate on 
a right to 

%t the time 
ared breach 
contraven- 
cial law, it 
his case, to 
ars and to 
-evail over 
mt is legis- 
ninion — or 
iction with 
Dominion 

[he remedy 
intra vires, 
the con- 
)ugh I by 
Ik the Con- 
or's Court 
not being 
tre us. 



ttempt to 

ite under 

[lira vires 



of the Legislature of the Province of Quebec, altogether 1883-4 

[194] fails. In the Queen v. Taylor (1), I expressed my con- p^u, 

rurrence in the decision of the Supreme Court of New _, "• 

^"' _ ... Corporation 

Brunswick, in the case of the Justices of Kings (2), in «*' Quebec. 
which it was held that under the authority conferred by Strong, J. 
the B. N. A. Act to legislate respecting municipal institu- 
tions, the Provincial Legislature possessed that power 
ffenerally denominated the police power, to regulate the 
sale of spirituous and intoxicating liquors, and I adhere 
to that opinion. Then, I think that this appeal must be 
disposed of without pronouncing any opinion upon the 
question of statutory interpretation which was argued 
before ns, for it is plain, as I read the authorities, that 
this is not a case in which the writ of prohibition will lie. 
[The remainder of the judgment is occupied in con- 
sidering whether the writ of prohibition would lie. The 
learned Judge was of opinion that the writ issued im- 
piovidently and was properly quashed.] 

FouRNiER, J., concurred with the Chief Justice. 

[Henry, Taschereau and Gwynne, J J., did not give 
any opinion on the constitutional question. The learned 
Jmlges considered that the penalty imposed on the appel- 
lant by the Recorder was not authorized by the statute 
4248 Vict. c. 4, and that the prohibition was therefore 
rightly granted.] 

Judgments in Quebkc Court of Q. B. — Appeal Side. 

[ RepoHed 7 Quebec Law Rep. 337.] 

[Trmislated.] 
[Tessier, J. ;— 

[338] This case is of more than ordinary interest, not only as a 

[inestion of jurisprudence, but also as a question affecting order and 

jpublic morality. 



(1) 36 U. C. Q. B. 218. 



(2) 2 Pugsley 535 ; ante vol. 2, p. 499. 



) I 



M 



. hi 




, I 



238 



SUPREME COURT OF CANADA. 



1881 

POULIN 

V. 

COKPOKATION 

OF Quebec. 

Q.B., Quebec. 

Tessier, J. 



The appellant, Poulin, has been sentenced in the first instance by 
the Recorder's Court of the City of Quebec to pay " a tine of $4(> 
for not having closed during the whole of Sunday the 18th of Jan- 
uary, 1880, the house or building in which he sold spirituous 
liquors.' 

Against this sentence Poulin obtained a writ of prohibition from 
the Superior Court. After trial and argument this latter Court, pre- 
sided over by the Honourable Chief Justice Meredith, on the 23id 
of March, 1881, affirmed the sentence of the Recorder by the follow- 
ing judgment : 

" Considering that although the Parliament of Canada under the 
power given to it to regulate trade and commerce alone has the 
power to prohibit the trade of intoxicating liquors ; yet that the 
Provincial Legislatures under the power given to them, may, for the 
preservation of good order in the municipalities which they are em- 
powered to establish and whichareunder their control, make reason- 
able police regulations, although cuch regulations may to some 
extent interfere with the sale of spirituous liquors ; 

" And considering that the provisions of the Provincial statute 
42-43 Vict. c. 4, ordering houses in which spirituous liquors, etc., are 
sold to be closed on Sundays and every day between eleven of the 
clock of the night until five of the clock of the morning, are police 
regulations within the power of the Legislature of the Province of 
Quebec ; 

•' And seeing that, by the section number five of the last men- 
tioned statute, keepers of hotels and houses for the lodging and 
entertainment of travellers are to a certain extent exempted from 
the operations of the said statute, but seeing that the plaintiff, even 
according to his own allegations, is not, and was not at the time he 
was prosecuted and convicted, as complained ot by him, one of the 
persons so exempted from the operation of the said statute ; 

" It is, in consequence, ordered and adjudged that the writ of 
prohibition in this cause issued be and the same is hereby set aside 
and quashed, and the petition and demand of the said Alphonse 
Poulin is hereby dismissed, the whole with costs in favour of the 
defendants." 

[339] It is from this judgment that there is an appeal to tiiis 
Court. 

The appellant Poulin, has put forward several objections, amongst 
others : that the statute of the Legislature of Quebec, 42-43 Vict. c. 
4, under which this sentence was pronotlnced in the first instance, 



SUPREME COURT OF CANADA. 



239 



stance by 
le of ^40 
h of Jan- 
ipirituoiis 

tion from 
lourt, pre- 
1 the 23nl 
,he follow- 
under the 
e has the 
t that the 
lay, for the 
ey are em- 
ike reason- 
y to some 

cial statute 
jrs, etc., are 
>ven of the 
are police 
Province of 



y 



last men- 
tdging and 
npted from 
intiff, even 
;he time he 

one of the 
|te ; 

;he writ of 

(y set asiile 
Alphouse 

>ur of the 

pal to this 

L, amongst 
I43 Vict. c. 
kt instance, 



POULIN 

V. 

CORPORATIOK 

OF (Quebec. 



is lUtra vires, not comprised in the jurisdiction and functions of the I88I 
Legislature of Quebec, because the Confederation Act (section 91) 
gives the Federal Parliament exclusive power over " the regulation 
of Trade and Commerce." 
It is one of the rules in the interpretation of a statute that all its 

provisions must be compared in order to give them a reasonable ' ''. 

sense according to the intention of the legislator and so as to render Te saier , J. 
the statute more effective in practice. Now in the division of legis- 
lative powers between the Federal Parliament and the Provincial 
Legislatures.the language used allows the greatest elasticity of inter- 
pretation in order to leave to the Courts the power of applying 
them, not to create a conflict between the legislative bodies, but to 
facilitate the execution of those different powers. 

If it were necessary to give a strictly literal interpretation to these 
words "regulation of trade and commerce," we might repeat the 
adage, " the letter killeth ; " but it is necessary rather to add as the 
whole adage expresses it : " the letter killeth, but the spirit of the 
law giveth life. " 

In fact we should destroy the extensive powers which the Confed- 
eration Act has given exclusively to the Provincial Legislatures, 
amongst others : 
" Municipal Institutions." 

" Shop, saloon, tavern, auctioneer and other licenses," etc., and 
" property and civil rights in the Province." 

" Generally all matters of a merely local or private nature in the 
Province." (Section 92.) 

Is it not part of" municipal institutions to make rules and police 
regulations for preventing disorder on Sunday and at night, by com- 
pelling innkeepers and saloon-keepers to keep their bars closed 
during the above mentioned times ? 

Is it possible to question the power of our Local Legislature, or 
even of our municipal corporation, to prevent the sale and storing 
of powder except in certain places and with certain precautions for 
public safety ? This however is a matter of trade like all others. 

[340] It is manifest that by the words trajic et commerce, esiiocially 
tlie English words " trade and commerce," it was intended to 
express legislation over the general interests of commerce which 
relate to the whole Dominion of Canada, the mode of importing and 
exporting merchandise, the storing of this merchandise in towns so 
as to protect the customs, entire prohibition in certain cases for the 
general protection of the commerce of the Dominion, but not 





i ■ H 



■1 ^l* 



} t .1 



240 



SUPREME COURT OF CANADA. 



mmi 



1881 

POULIN 

!'. 

COKPOHATION 

OF (^IIEBKC. 

(^.B., Quebec, 
Tessier, J. 



spucial laws of Provincial Legislatures which do nothing more than 
regulate the mode of selling and trading in certain " luatterg of a 
merely local nature in the Province." 

1 am not amongst those who can be induced to limit the rights of 
the Provinces in useful le^^'islation lor the public good, e8))ecially 
when the Federal Government armed with the power of placing a veto 
on these Acts of the Provincial Legislatures does not think fit to dis- 
own them. (Section 90.) 

This Provincial statute tlipn comes completely within the powers 
of the Legislature of Quebe*. 

The second objection is serious and relates to the i)articular 
words of this statute, which constitutes the offence in question. Do 
these words of sect. 4 of the Quebec statute of 1879, 42-43 Vict., 
include one offence only of keeping the house oi^en and selling there- 
in drink on Sunday, or two offences, the one of keeping the house 
open and the other of selling therein drink or spirituous liquors / 

[ The remainder of the judgment is occupied with the consider- 
ation of this second objection. The learned Judge was of opinion 
that the intention of the Act was to constitute two distinct offences.] 

I have much pleasure in concurring in this judgment of the Court 
of Appeal which confirms the sentence of the Superior Court on all 
points as well as the original sentence. 



w 



t 



EaiMsay, J. : — 

[341] The principal question raised in this case, is as to the 
authority of the Local Legislature to prohibit or regulate the sale of 
liquors in saloons or taverns on Sundays or at particular times. It 
seems to me that this is ijurely a matter of police regulation, and con- 
sequently it is within the powers of municipal corporations, and that 
the exercise of such a power cannot be considered aa being a restric- 
tion of trade and commerce. It is possible, as the appellant 
suggests, that this decision may lead the way to questions of greater 
difficulty, but it is also possible we may be relieved from the 
responsibility of their decision. 

A second question in this case is whether the act charged is an 
offence at all. I do not feel called upon to express any opinion as to 
the meaning of section 1, 42-43 Vict. c. 4 (Quebec), and, not being 
obliged to do so, I willingly refrain. I may say, however, that in 
the interpi-etation of a penal statute I do not feel justified in going 
beyond the express meaning of the Act. But it appears to me that 
the complaint is clearly within the Act, whether the complaint be 



SUPUKME COURT OF CANADA. 



241 



to the 
le sale of 
lies. It 
md con- 
iiid that 

restric- 
ipellant 
[greater 

m\ the 

kd is all 

in as to 

It being 

that in 

going 

le that 

lint be 



well ur ill expressed, and therefore I do iKjt think tlmt the Recorder 
Clin be uiteifered witli on prohibition. 

[The reuiiiinder of tlie judgment is occupied in discussing the 
(question of prohibition.] 

[Tr<nixla{>,i:] 
DoRioN, C. J. : — 

[;}4"2] The ai)pellant has been prosecuted before the Recorder of 
the City of Quebec, under the statute of Quebec, 42-43 Vict. c. 4, 
s. 1, for not having closed during the whole of Sunday, the 18th 
of January, IBSo, tlie house in which he solil spirituous li(juorH. 

On this priisecution ho has pleailed that the Recoider had no 
jurisdiction, because the statute relied on did not authorize such a 
prosecution as the present, and, secondly, because the statute was 
ultra vires, and that the regulation and restraint of the sale of li(|Uor 
came within the exclusive juri3clictif)n of the Dominion Parliament. 

This defence has been overruled and the defendant sentenced to 
pay a fine of §40. 

He has moved for a writ of prohibition to restrain the Recorder 
from enforcing this judgment, and, on the merits, the Superior 
Court has afhrmed the judgment of the Recorder and refused the 
prohil)ition. 

The appellant has appealed from this judgment. 

Two questions are submitted to us : 

1. Is the statute 42-43 Vict. c. 4 unconstitutional ? 

2. If the statute is not nltra vires, do the facts stated in the com- 
plaint support a prosecution under this statute ? 

As regards the first iioiut, I should be disposed to say that the 
words "trade and commerce," in sub-s. 2 of a. 91 of the B. N. A. 
Act should not be interpreted in the widest sense and as embracing 
[343] all traile and commerce vvhatever, even the most insignificant 
matters of local commerce, and that, in this view, the statute of 
(Quebec, though restraining to some extent the trade in intoxicating 
li([Uors, is not ultra vins. But we are all agreed in saying that it is 
not necessary to decide this question in the present case. The 
statute under consideration has not been passed to regulate the sale 
(if liquors. It is a police measure adopted for the preservation of 
good order and the public peace. This is a matter merely local, and 
which as such is subject to the authority of the Provincial Legis- 
litures under sub-s. 16 of s. 92 of the Constitutional Act. This 
ipiestion has already been decided several times in the Province of 
16 



18H1 « 

POLI.IN 

V, 

("iiUPOKATrON 

or <^i-KBh;o. 

<,».B., (Quebec. 

Riuiisiiy, J. 



i 



m 



J 



242 



SUFUKME COURT OF CANADA. 



'ffilDH 



1880 

POIUN 

V. 

CoKPOUATldN' 

OF (^tKBK( . 

Dfiri"!), C..I. 



lliH 



Oiitiirit), and, ainoiigst others, in tho case of liiij, v. 'L'<i\jh>r{\.) in tlii; 
Court of Quoon'a Honch. Tli»>t Court has decitlcd " tliat thu restric- 
tion imposed by tliu Ontario Legislatun; on brewers not to sell l.y 
retail, as doHn<nl by the Act of 1874, is not \dtra nrrn, because it is :i 
mere rein-lition and renewal of tlie le^islaticm wliicli wu" in forcf 
before and at the time of the Confederation." And further " that 
the Ontario Lcqislature has a right to license or prohibit the sale of 
li(iuors in shops and taverns and in other places of the like kind, be- 
cause it has the exclusive power over munieijial in.stitutions,and these 
institutions had before and at thetimeof Confederation tho exercise 
of these powers, and because such power, read in connection with 
s. 92, sub-s. 10, of the Confederation A(;t, is now a matter of ' a 
meiely local or private nature in the Province.' That power is in 
restraint of trade as well as a matter of police. The general regu- 
lation of trade and commerce, which is vested in tho Dominion 
Government, must be considered to be modified by the powers 
which the Legislature of Ontario, acting in relation to municipal 
institutions, may properly exercise." 

The same tribunal has also decided, in the case of Slavinv. Tlir 
Corporation of the Villarje of Orillut (2), that " by-laws passed by 
municipal corporations wholly pndiibiting the sale of spirituous 
li(juors in shops and places other than houses of public entertain- 
ment, and limiting the number of tavern licenses to nine, were valid 
as being within the power of the corporation under 32 Vict. c. 32, O., 
and that it was within the authority of the Provincial Legislatun- 
to confer such power." 

[344] Like decisions have also been given in the cases lit »( 
Thouuts Arkell and The Corporation of the Town of St. Thomas (3), 
and In re Thomas Brodie and The Corporation of the Toiot of Bo if- 
manville (4). 

The second (juestion presents more difficulty. 

[The remainder of the judgment is occupied with the considera- 
tion of the second point. The Chief Justice was of opinion that the 
intention of tho Act was to make two distinct offences. 

[Cross and Baby, JJ., did not deliver any separate judgments] 

<l) 36 U.C.Q.B. 183. (2) 36 U.C.Q.B. 159 ; ante, vol. 1, [>. 688. 

(3) 38 U.C.Q.B. 594. (4) 38 U.C.Q.B. 580. 



Sl'PllKME COURT OF CANADA. 



24M 



SUPREME COURT OF CANADA. 



The Queddy Rivkr Duivino Boom Co., 

AN 

ton L. L. Bevan 



! Queddy Rivkr Duivino Boom Co., \ 

ND Hugh R. Robertson and Lamr- V Aiypellant:! ; 



AN'f> 



1888 

Feb. i.v;, i^r ; 
May I. 



William Davidson ... Jiespondevf. 

On Apjienl from the t'iup.emo Cmut of Kcu- Brtm^irirk. 

[lieimied 10 Cmt. S. C. 11. ^\'J.] 

Navigation and Hhippin<j — ^5 Vict. c. 100 (N. B.) 

A Provincial Legi.slature may incorporate a boom company, but 
cannot confer up(jn the company power to obstruct the naviga- 
tion of a tidal and navigable river, (Taschereau, J., doubting), 

MrMiU(()k V. South-West Boom CjmpaH\) (1), overruled in part. 

Appeal trom a judgment of the Supreme Court of New 
Brunswick (2). 

The plaintiff in this case filed a bill for an injunction 
to restrain the defendants from erecting and maintain- 
ing piers and booms in the Queddy River, and alleged 
that by erecting the said piers and booms and filling the 
stream with logs, the said plaintiff was prevented for a 
length of time from having access to the shore and using 
the stream for the purposes of navigation. 

This coming on for argument on demurrer, it was [228] 
agreed that the only question that should be raised upon 
the argument should be the authority of the Provincial 
Legislature under the provisions of the B. N. A. Act, 



'Present :— RiTOHiK, C..T., and Sthono, Fournikr, Hknkv, Taschereau 
and GwTNNK, JJ. 

(1) 1 P. & B. 715 ; ante, vol 2, p. 542. (2) Post, p. 260. 



i! 






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244 



SrPHl'ME COURT OF CANADA. 



1H83 1(SG7, to pass the Act incorporating tlie said Company, 

ynic and to confer the powers contained therein, and tliat all 

Hrivix^; Bo()M other matters stand to the liearing; and for the purpose 
Com I • AN V 



v. 
Davidson. 

.SrATKMENT. 



of raising the question }-elating to the said Act the fol- 
h)\ving case was agreed upon between the counsel for tli(; 
res])ective parties: — 

" 1. The plaintiff is tlie owner of certain lands situate 
at the outlet or mouth of the Queddy River, Avhich 
empties into the Bay of Fundy. The said river is situate 
in the parish of St. Mai'tins, County of St. John, in the 
Province of New Brunswick. 

" 2. The Queddy River is a public navigable river ; thr 
tide ebbs and flows for about a mile and a half from the 
mouth 01 outlet ; and schooners or boats can, at the 
proper time of tide, go up to the head of the tide. The 
stream above the flow of the tide is and can only be used 
fOi" floating and driving logs when the water permits. 

" 8. The rise and fall of the tide is about thirty feet, 
and at low tide the water is very low in the stream, 
almost dry, and vessels can only ascend it under and at 
certain states of the tide. 

" 4. The said river flows through the plaintiff's land 
for the distance of a mile from its mouth, he ()wnin<f the 
shore on either side. 

".'). The defendants, Robertson and Bevan, own or con- 
trol lands at the head waters of the river adjacent there- 
to, from which they cut logs and drive them down the 
stream — the only practicable mode of getting them to 
market. 

"6. The plaintitl' also holds lamls upon the said stream, 
from which, and also from his lands at the mouth of the 
river, he procures his supply of logs for the use of his 
mill hereinafter mentioned (U 



(l)[Thi8 paragravh, thoug^K irint- 
t'd ill the Ciisf as pifpiired for the 



Supreme Court of Canada, isoiiiittcil 
in the report.] 



SUPREME COURT Of CANADA. 



24-5 



" 7. The defendants, the Queddy River Driving Boom i'S83 

Company, are a company incorporated by an Act passed at thk 

the last session of the Legislature of the Province of [22-i] i^iVivimi ijoom 

Company 

V. 

Davidson. 



New Brunswick, intituled 'An Act to incoi'porate the 
(.^tiieddy River Driving Boom Company' (1). 

" S. In pursuance of and professing to act under the 
powers contained in the said Act, the said Company have 
eit'cted and placed ])iers and booms in the said river 
attached to the shores at the places on map {i.nnexed 
hereto at the points marked A, B, C, D. 

" 9. These booms as erected under the Act imj)ede 
navigation, but at the times when the tides serve they 
a! e capable of being swung open to admit rafts passing- 
down or craft up stream. 

" 10. The plaintiff has erected a steam saw null on his 
land at the point marked. 

" 11. Without booms being placed in the river at some 
point in the tide-vv^•^y near the mouth, logs driven -lowu 
the stream or a great portion thereof, would escape into 
the bay, and be i)ractically lost and swept out to sea. 

" 12. The defendant company claim the right to erect 
the piers and booms as shewn on the plan, and maintain 
the same under the powers contained in the said Act, and 
that the said booms are erected there in accordance with 
the powers given by the said Act." 

The (questions for the opinion of the Court are : — 

First, can the Legislature of the Province of New 
Brunswick give the powers claimed by the defendant 
Company under which they have erected and maintain 
the said piers and booms ? 

Second, aie the acts done by the Company, as above 
set out, within the powers given by the said Act. 

U these cpiestions are answered in the affirmative, then 

(1) 45 Vict. c. 100. 



11 



Statemknt. 



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.Sb'PREMK COUllT OF CANADA. 



1888 judgment to be 'jfiven for the del'endants ; but if in the 
Thk negative, then the deiuurver to be overiuled. 
SIvingBoom " 13. It is admitted that the plaintiff has sustained such 
Company <5pecia,l and particular damages by the operations of ['22'^] 
Davidson. ^^\^q Company as would entitle him to an order of injunr- 
Statemkxt. t^JQn restraining the proceedings of the Company and the 
other defendants if the above powei's conferred by the 
Act of the Legislature of New Brunswick are ultra vires." 
The Supreme Court of New Brunswick delivered judg- 
ment in favour of the plaintiff; and in reply to the first 
question declared that the powers conferred by the Act 
of the Legislature of New Brunswick upon the defendants 
authorizing them to erect piers and booms and maintain 
the same as stated in the special case are ultra vires and 
beyond the powers of tlie Legislature of the Province of 
New Brunswick ; and as to the second (juestion in the 
said special case declared it was unnecessary to ansn^er it 
in view of the decision upon the first question. 

Mr. Weldon, Q.C., for the appellants : 

It is contended for the respondents that the legislation 
incorporating this comj)any is ultra vires of the Legisla- 
• ture of New Brunswick, as being legislation indirectly 

controlling navigation and shipping. 

It cannot be disjiuted that at first sight it would so 
seem, but it is submitted that it is not, Itut an exercise of 
a power necessarily vested in the Legislature to carry 
into effect the recpiisite legislation to incorporate this 
company, being a matter within the class over which it 
has legislation. 

Legislation, whether of the Dominion or Pr(jvinciid 
Legislatures, over certain classes or subjects falling within 
the classes respectively assigned them, in order to bo 
elective must, in many cases, not only apparently but 
actually trench or infringe upon matters exclusively 



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SUPREME COUKT OF CANADA. 



247 



1883 



assigned to the other Legislature, and the power to do ,p,^g 
this arises by necessary implication. The instance o^ VniiviNo^ooM 
bankruptcy and insolvency is perhaps the most familiar. Company 

Applying the principle laid down by Sir Montague E. i>aviiison. 
[22li] Smith in delivering judgment in the eaN )f Cashing Argumknt. 
V. Diipuy (1) to the classes assigned to provincial legis- 
lation it would seem to be a necessary implication that 
when it is necessary to render the legislation effective 
and of value and benefit to the people of the Province, 
or a portion of it, that it was intended to confer on it 
legislative power for that purpose, even if to some extent 
it apparently infringes upon classes of subjects exclusively 
assigned t;. the Dominion Parliament. 

Bv the 10th sub-sect, of sect. 92, local works and 
undertakings, such as certain classes of railway, canal, 
telegraph and other works, are, upon the principle mentio 
U'niiu' xclusio est (dterius, within the power of the Local 
Legislature. 

Again, works of a local character, for instance, bridges 
to connect the great or bye-roads and to facilitate local 
conmumication through the Province and to open it up 
for settlement, it must be conceded are within the legis- 
lation of the provincial legislature. Many of these 
bridges necessarily cross rivers within tlie iiow of the 
tide below the head of navigation ; in fact many do, as 
may bi' instanced upon the rivers Mowing into the l)ay of 
Fundy, such as the Mus(|uash in the County of St. John, 
the Petitcodiac and Menu'amcook in the County of West- 
moreland — over the latter not less than tliree bridges 
below the head of navigation. The biidges over the 
Shediac, Cocagne, Jiuctouchc, Richibucto and Miramiclii 
rivers, flowing into the (>ulf of St. Lawrence, ni'c all 
below the head of navigation, many of these erected since 
the 'Union, and are constructeil with draws to enable 



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(1) 5 App. Ca.s. 400; ante, vol. 1, p. 252. 



w 



248 



SUPREME COURT OF CANADA. 



Company 
Davihson, 
Arqiment. 



1883 vessels to pass up and down, but necessarily to some 
Thk extent interfere with the navigation. If the Local Legis- 
Driving Boom lature have no authority to authorize such an erection or 
bridge, then it would be illegal and a nuisance: Hule v. 
Slfti/ighourne and Sheerness Mcdhuay Co. (1). 

[227] Angell on Watercourses (2), " All hindrances to 
navigation, whether by bridges or in any other manner, 
without direct authority from the Legislature, are public 
nuisances." Hco, also Original HajHlcpool Collieries Co. 
V. Gibb (3). 

If in the course of navigation a vessel injured such 
bridge or boom, if illegal, no acj^ion would be maintain- 
ai)le : Colchester (Mai/vr, d-c.) v. Brooke (4-). 

I submit that the legislation complained of by the 
respondent is legislation affecting property and civil 
rights, and falls within that class: L Union St. Jacques 
de Montreal v. Belisle (5). 

The judgment of the judicial committee of the Privy 
Council in the case of Queen Ins. Co. v. Parsons ((>) 
supports the principle I am now contending for, and 
ajiplying the rule there laid down, to ascertain the inten- 
tion of the framers of the Act of Union, legislation (»f 
the provinces prior to the union is to be looked to. The 
legislation of the Province of New Brunswick (>n thi.' 
subject will be found in the 3rd Vol. Public Statutes, 
under the head of Boom Companies. 

While it may be contended that the relation of the 
Dominion to the Provinces is not in entire analogy to that 
of the United States with the respective States of tlu' 
Union, yet it is only in the decisions of their courts we 
can find the ((uestion of conflict of legislation discussed, 
and the priucijjles of (constitutional law discussed and 



(1) G H. & N, 488. 

(2) Sec. 555, ed. 7. 
(:{) 5 Ch. ]). 712. 



(4) 7 Q. B. 33!l. 

(o) L. R. 6 P. C. 31 ; atitr, vol. 1, p. 03, 

((>) 7 M'V- Gas. DO; (tntr, \i>\. 1, |>. 2(m. 



SUPREME COURT OF CANADA. 



249 



expounded, and considering that from the same source as 1S83 
ourselves the conmion law of oni- mother countiy, the thk 
federal courts, and as a general rule the state courts, ]')„^''.'ij^^,j jjj^q^ 
derive their principles of jurisprudence, and also taking Comj'any 
into consideration the similarity of cirumstances in each i^avid.son. 
federation, it may be fairly urged that even if their Akgumf.nt. 
[228] decisions are not followed in their entirety, they may 
afford light and information upon these questions dis- 
cussed Ijefore their courts. 

In Harvifjan v. The Connecticut River Lumher Comi- 
pdH'l (I), the court illustrates the regulation of rivers 
tven navigable as in the analogous case of highways. 
(8ee judgment delivered by Lord, J.) 

After the decision in Gibbons v. Or/den (2), the ques- 
tion arose before the same judges in the case of Wilson 
v. The Blackbird Creek Marsh Co. (8), where the doctrine 
(tf the several rights of the Congress and the State is dis- 
cussed by that eminent jurist Chief Justice Marshall ; 
and subse<[uentiy in the Supreme Court of the Uniteil 
States in iState of Pennsylvania, v. Wheeling and Bel- 
mont Bridge Co. (4), where Chief Justice Taney delivered 
a dissenting opinion. See also County of Mobile v. 
KlinJxdl (5). 

Barker, Q.C., and Tuck, Q.C., for the respondent : — 
The question involved in tliis appeal is whether the 
act of the Legislature of Netv Brunswick, 45 Viot.,c. lOO, 
intituled " An Act to incorporate certain persons to be 
known as The Queddy River Driving and Boom Company,"' 
is idtra vires, so far as it authorizes the acts done by the 
(Vimpany in erecting booms and other works in the 
Queddy River, oltstructing its navigation and preventing 



«*U 




(I) 12'J Mass., 580. 
m !) Wlieaton 1. 
i.;!) 2 Peters 245. 



(4) 13 Howard 518. 

(5) 12Utto()!)l. 



ii:ila 



2o0 



SUPREMK COURT OF CANADA. 



I'^K! 



the lespondent iVotu Imving access to his lands fronting 
Thk ori tlie river. The powers conferred upon the company 
Umvixo J500M *o which exception is taken will be found principally in 
Company j^gctions 8 and 4 of tlie Act. (6) The construction of the 
works thus authorized, we contend must inteifere with 



V. 

Davidson. 



AlUiUMKNT. 



(6) 4.5 Vict. c. 100, s. 4. " The 
said ci)nii)any are also hereby eiu- 
pdwered and authciri/cd from time to 
time during the continuance of this 
Act to put and i)hice near the mouth 
of the said river, at such jilace or 
|)hiceK as may be reasonably neces. 
sary, any [ners and booms and things 
ai)|iertaining thereto and that may 
be necessary to sustain the same for 
the purpose of holding and keeping 
from being floated or driven against 
the will of the owner or owners 
thereof or of said company out to sea 
my such logs, timber or lumber as 
may be so floated or driven down 
said river as aforesaid ; provided 
always, that any such [)iers and 
booms and thingsappertaining there- 
to and that may be necessary to sus- 
tain the same shall be so j)ut, placed 
and maintained as not unavoidably 
to interfere with any mill or mills, 
or with any booms, piers, wharves 
sluices, dams or other erections that 
are now or that may hereafter be 
erected at or near to the mouth of 
said river for the use of or in connec- 
tion with any such mill or mills. 

Sect. 5. " For the purpose of ex- 
ercising the powers and i)rivileges 
granted to the said company by the 
second, third and fourth sections of 
this Act, the said company shall 
have power and authoi'ity from time 
to time during the (■uutinuance of 
this Act, by their agents or work- 
men, to enter into and upon iind hold 
and occui)y for that pxu-pose any land 
bordering (jn the said river or its 
tributaries or near to the m<iuth 
thereof that sliall l)e necessary for 
the constructing, fastening, main- 



taining' or ojierating the works or 
up|)liaiices which they are authorized 
to construct, place or '.intain by 
virtue of the said last mentioned 
sections of this Act, doing nu un- 
necessary damage to such land ; pro- 
vided always, that before the said 
comjjany shall exercise the powers 
given them under and by virtue of 
the fourth section of this Act they 
will, witli one good and substantial 
security to be ajiproved of by the 
Recorder of the C'ty of Saint .John, 
enter into and deliver to the owner 
of the land a bond in tht; sinu of 
SI, 000, conditional that the obligors 
mentioned in the bond shall pay the 
.imount of any award made under 
the sixth section of this Act in ac- 
cordance with the terms f said sixth 
section and of the awaixi ; provided 
always also, that if there be more 
than one owner "f any jiiece of said 
land, the delivery of the bond to any 
one of the said last mentioned owners 
shall be sufficient luider the terms of 
this section of this Act, and if all the 
owners of any one i>iece of said land 
shall be out of tlie Province at the 
time of the executing any bond under 
this section, then it shall be sufficient 
to tile the bond in the office of the 
Provincial Secretary, at which jilace 
any owner of any piece of land to 
which the bond refers for whom it 
may be intended shall be (>ntitled to 
have the same on written applica- 
tion therefor; imder the terms of 
this section of this Act the mort- 
gagor or person entitlwl to tliee<iuity 
of redemjition in the land shall be 
considered the owner." 



SUPREME COURT OF CANADA. 



251 



the public riglit of naviy^atioii, and in reference to a [229] ih83 

navigable river, such as the one in question, tlie Local thk 

Legislature has no power to confer the right professed to Hhivino 1'!oom 

Company 

V. 

Davidson. 



be given by this Act. 

By sect 91. of the B. N. A. Act, the right to legislate on 
the subject u. navigation and shipping is given to the 
Dominion Parliament ; and if the powers conferred belong- 
to any of the classes of subjects in sect. 91 of that Act, or 
are included in any of them, the Local Legislature has, to 
tliat extent, exceeded its powers, even though the Act 
may relate in other respects to some subject comprised 
within sect. 92. It is contended by tlie appellants that 
the Act in question relates solely to a local work and 
inidertaking, and to matters of a merely local or piivate 
nature, and as such conies within sect. 92 of the B. N. A. 
Act. This contention cannot prevail. In the first place it 
cannot be said that the construction of works, which in 
their intended use necessarily take away or aliridge a 
right in the public, such as tliat of navigation, is in any 
sense a matter of a merely private nature, and in the 
second place, any work or undertaking local in its nature 
ceases to be such in the sense in which the term is used 
in sect. 92 when its use or the result of its operation, m 
to interfere with any right which is included in a subject- 
matter within the legislative authority of tlie Dominion 
Parliament. For while the latter Parliament has, by 
force of the concluding clause of sect. 91, in addition to 
its express powers, such an imphod legisliitive authority 
over the subjects mentioned in sect. 92 as may be requisite 
for complete legislation in refereiice to the subjects men- 
tioned in sect. 91, there is no such implie(l authority in 
the Local Legislature in reference to the classes of subjects 
mentioned in sect. 91. Any such implied authority wouM 
obviously lead to conflict, And it is contended that except 
in the ca.ses provided for by sects. 94 and 9."> of ['2.S()] 



AROUMENTr 



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252 



SUPRKME COURT OF CANADA. 



1883 

THK 
QrKDDYHlVKU 

DiuviNu HooJi 

POMPANY 

>: 
Davidwon. 

Argimknt. 



the B. N. A. Act, tliere is no concurrent power of legis- 
lation in the two Parliaments. 

The cases decided by this and other Courts in reference 
to the powers of the respective Le<^dslatures, so far as 
they bear on the subject under discussion, are as follows : — 
Cif)/ of Frederivton v. The Queen (1) ; Ciishing v. Dupuy 
(2) ; Citizens Ins. Co. v. Parsons (8) ; Russell v. The 
Queen (4). See also The Queoi v. Burah (o). 

Adniittinjx for the sake of artjunient that the Act in 
question prima facie, as Sir Montague Smith, in the 
Citizens Ins. Co. v. Parsons (3), says, falls within one of 
the cla.sses of subjects enumerated in sect. 02, does it not, 
or do not the powers conferred on the appellant company 
fall within tlie subject of navigation, inasmucli as they 
interfere with the i)ublic right in reference to it. If the 
Dominion Piirliament enacted a statute simply authoriz- 
ing A to enter upon and occupy the land of B, to his 
entire exclusion, it could scarcely be contended that this 
was not legislation a^ to the civil rights and property of 
/>, and therefore ultra vires of that Parliament. Why? 
Not because it in words took away B's right of enjoying 
his own premises, but because that was the natural and 
necessary result of acting on the authority conferred. 
So in this case, the prevention of the public in the enjoy- 
ment of their right of navigation and its incidents, is tlie 
natural and necessary result of the use of the powers con- 
ferred. The legislation, therefore, does fall within tlie 
subject of navigation, and by all the authorities is void on 
that account. 

The Dominion Parliament in its legislation has acted 

(1) 3Can. S. C. H. DOS ; ante vol 2, (4) 7 Apii. Gas. 8213; ante vol 2, 

!>. 27. p. 12. 

(2)5 App. Cas, 415; ante vol. 1, (5)8 App. Gas. !)04 ; /tost, .\iipen- 

1). 252. di.\ 1. 

(3) 7 A|ip. Gas, % ; ante vol. 1, 

p. 2C5. 



SUPHEMK COURT OF CANADA. 



20:} 



on the pi'inciplo contended fur ])y tlu; respondent, and ih83 
thoiitfh this fact could in no way confer a right not given -p,,^, 
by the constitution, it is a question wliicli, in such a [2.S1 | nu'ivixVlw^ 
case as the present, " may," as Sir Montague Snnth, at pag(.' t'oMi'.wv 
116 of the case last cited, says, "properly be considered." i*\\^>"«<>n. 
These statutes are numerous and refer, as will be seen, to Amn mknt. 
almost every description of work wliich might interfere 
in any way with the rights of the pul)lic in navigable 
rivers. These statutes are as follows : — '.i'2-'.V.] Vict. c. 42; 
35 Vict. c. 94; 'Mi Vict. c. Go; :]7 Vict. c. 29; 39 Vict. c. 
15 ; 42 Vict. c. 9, s. 71 ; 43 Vict. c. 44 ; 43 Vict. c. 61 ; 
43 Vict. c. 29, s. 2, art. 27. 

The provision in the Act, sect. 22, that the works shall 
not unnecessarily interfere with navigation, admits that 
the right of navigation will necessarily be abridged, but 
beyond that it has no bearing on the case. Who is to 
judge the necessity, or how is it to be determined ? Is it 
by the quantity of logs to be taken care of ? If so, then 
it follows that if the quantity of logs to be boomed 
re([uires the whole river to be occupied by the company's 
works, the right of navigaiion is taken away altogether 
and necessarily so. 

Then, it was argued in the Court below that at all events 
the legislation in question was good until some Act con- 
Hicting with it had been passed by the Dominion Parlia- 
nient, and cases decided by Courts in the United States 
were cited in support of this contention. 

Under the B. N. A. Act the only question that can 
arise is one simply of construction, and the ])ower of 
either the Dominion Parliament or a Provincial one to 
legislate on any subject is defined and limited by the Act 
itself, and nuist be determined by the rules of construc- 
tion applicable to any other case where the meaning 
of a statute is to be settled. 

Weldo)i, Q.C., replied. ' 



■ ™; 


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SUPHEME COl'llT OV CANADA. 



IHHII 



Ritchie, CJ. :— 
PiL'VS and boi 



useful on the Quedtly 



V. 

Davipson. 
lUtcliie, C.l. 



'*7" '^^•'A^•Y' ' [^"^-] liver, may, in fact, be almost essential for the preser- 
vation of logs driven down the river, to prevent their escap- 
in<^- into the bay and swept out to sea. But that cannot 
art'ect the legal question in this ease, which is, to which 
ief^islative power, that of the Dominion Parliament or the 
Assembly of New Jirunswick, belongs the right to author- 
ize the obstruction by piers or booms of a public tidal 
and navigable river, and thereby injuriously interfere 
with and altridge the public right of navigation in such 
tidal navigal)le waters. It is Jiot disputed that this legis- 
lation interfered with the navigation of tlie rivei*, indeed 
this appeal's clearly from the language of the Act itself 
which says (1): " It shall be the dut}' of the said company 
to place and maintain all their works upon the said river 
in such a way as not to unnecessarily interfere with the 
navigation of the same." 

T think there can be no doubt that the legislative con- 
trol of navigable waters, such as are in question in this 
case, belongs exclusively to the Donunion Parliament. 
Everything connected wdth navigation and shipping 
seems to have been carefully confided to the Dominion 
Parliament, by the B, N. A. Act. Thus, in addition to 
" navigation and shi{)ping," gener-dly, we have " beacons, 
buoys, lighthouses, and Sable Island ; " then we have 
" quarantine, and the establishment and maintenance of 
marine hospitals;" and lastly we have in the list of pro- 
vincial public works and properties which are to become 
the property of Canada, "canals with lands and water 
power connected therewith," "public harbours," "light- 
houses and piers, and Sable Island," " steamboats, dredges 
and public vessels " and " rivers and lake improvements." 



(1) 45 Vict. c. 100, s. 22. 



• ! •:<! 



SUPRKME COURT OF CANADA. 



All th 



to 



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jleavly that tli 



2oo 



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18.s;» 



IS seems 
"navigation and snipping are to do read m no rcstneted 
sense. The question of the interference with tlie naviga- '/,' 
tion of pul)lic tidal waters is by no means matter of purely <'"^'i\^v 
local or private ccmcern, it aitects the shipping of [2-i'.i] "'^^'""'"^' 
the Dominion generally, as imleed also foreign as well as l»itfliie, C. 
domestic ; and, therefore, in view of the general scop(^ of 
the Act, legitimately belongs to the Dominion Parliament 
rather than the Local Legislatures. 

The objects of incorporation of companies with power 
to interrupt, impede, or abridge the rights of foi'cign or 
domestic shipping in the navigation of any of the tidal 
navigable waters (if the Dominion cannot be said to be 
provincial any more than the works and undertakings 
under such powei's can be called local ; on the contrary, 
though the corporation may be private, the object to be 
accomplished affects the public as well within as without 
the Province. 

But if the objects of the incorporation conld strictly 
speaking be called provincial, or the works and under- 
takings local if thereby navigation and shipping, and 
the legislative powers conferred on the J)ominion Parlia- 
ment are interfered with, then liy virtue of the latter 
clause of sect. 91, they are not to be matters coming 
Avithin the class of matters of a local or private nature, 
comprised in the enumeration of the clas,ses of subjects 
assigned exclusively to the Legislatures of the Provinces. 

If the Provincial Legislature can authorize the obstruc- 
tion of the navigable tidal waters at the mouth of the 
Queddy River, why may thej^ not do the same at the 
mouth of the other large rivers of the Dominion, as in 
New Brunswick the mouth of the St. John, at the head 
of the St. John harbour, and so prevent or impede the free 
navigation of that great river by the numerous steam- 
boats, wood boats and seagoing craft that daily navigate 



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SUPREME COURT OF CANADA. 



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1W3 from the sea to tSt. John, ami from St. Jolin and Indian 
The Town to Fredericton, or tliat large and important river 
iJamNoBooM ^^ii'^^i'^chi, navigateil for miles from its mouth by sea- 
CoMPANY j^.j^jj^^, ^i^j^jy ^,, |.|jy towns of Chatham and Newcastle ? [284] 
Davidson, ^^nd if they have the riy,ht to interfere with and abridgfe 
Ritchie^ C.r. the rights of navigation, why should they not be able to 
authorize total obstructions ? for, if they can authorize 
partial obstructions, I can see no reason why they might 
not authorize obstructions which would render any navi- 
gation impossible, the question not being one of degree, 
but whether they can or cannot interfere at all. 

And these views are, in my opinion, strictly in accord- 
ance with the principles heretofore enunciated in this 
court, and sustained by the Judicial Committee of the 
Privy Council. 

I think, therefore, this appeal must be dismissed with 
costs. 



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SruoNti, J. : — 

There cannot, in my judgment, be any doubt as to 
the correctness of the decision of the court below, and 
I should have been prepared to have dismissed the 
appeal without hearing counsel for the respondent. The 
Queddj^ River is shewn to be a navigable tidal river, and 
the appellants have obstructed the navigation, and thus 
committed an act which is i>r[mn f((cle a public nuisance 
anrl whicli the respondent shews to be specially injurious 
to him as a riparian proprietor. The responilent was 
therefore entitled to an injunction to restrain the continu- 
ance of the obstruction, unless the appellants were able to 
shew some legal justification for the interference with 
the navigation of the river, caused by the construction 
and maintenance of these booms. They, however, shew 
nothing but an Act of the Provincial Legislature of 
New Brunswick incorporating them as a Boom Company 



Sl'l'REME COURT OF (ANA DA. 



257 



l.S«3 



(which so far was entirely within the powers of tliat 
Legislature), and which also assumed to confer power ■y^^^ 
upon the company so incorporated to obstruct the [2.So] V>'kiun«Boom 
Uiivlgation of the Queddy River. The powers so conferred * «^i'J*a.nv 
are, in uiy opinion, in excess of the authority given to i'-^\H»aoN. 
Lucal Legislatures by the H. N. A. Act. This is a eon- strong,.), 
cbision which requires no elaboration of argumentation 
for its demonstration, for no one can ileny that by sub- 
sect. 10 of sect. 91 of the B. N. A. Act, exclusive power 
to legislate respecting navigation is conferred on the Par- 
liament of Cimaila, and as little is it open to any one t<j 
dispute that this jxnver respecting navigation includes 
the exclusive right to legislate so as to authorize an 
obstruction in a navigaljle [lublic lixci- where the tide 
ebbs and liows. A mucli h>ss distinct power given by 
the United States Constitution to Congress to legislate 
respecting inter-state connnerce, has, as is well known, 
been held to include the power to eontrol the use of 
navigable waters on which inter-state connnerce is carried 
on. And the powerful reasoning of the great judges who 
decided these cases, would, if there could be any doubt 
upon the point now presented, be conclusive in the pre- 
sent case. 

Even if the provisions in sub-sect. lO of sect. Ul had 
been omitted, I should have thought that the authority 
of the Wheel nil/ d- Itelniont Bridge Cvmpanif Cui^e (I) 
would have been suHicient to shew that under suV)-sect. 2, 
giving Parnament power to regulate traije and connnerce, 
tlui Act of the New Brunswick Legislature in question 
here would have l)een an encroachment on these exclusive 
powers of the Dominion, and so void. 

For these reasons, which are substantiall}' the same as 
those assigned by the Chief Justice for the same conclu- 









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ihm;< sion, I concur in the disposition of this appe;il which h;is 

Thk hpon proposed, 
(^i Kiii'vKivK.i; 



DlUVlNt; BnoNi 
C<1MPANY 

V. 
1)AVI|i«ON. 



FdUHNIEK, J., concurred. 



strong. J. ['2'M]] Henry, J. :— 

I t'ntindy concur in the views expres.sed hy the ('hi<>f 
Justice and my learned brother Stron;^. The Legishitiire 
of New Brunswici\, of course, hnd the power to incor- 
porate the company for a local object, but the (juestion i-> 
raised here whether they had the right to confer on the 
company so incorporated the right to place oVi.stiuctions 
in tidal navigable waters. My opinion is, that under tlie 
constitution they have no such right. If a Local Legis- 
lature could interfere to the extent of one quarter of a 
mile in tidal water, they might interfei-e to the extent of 
a mile, and there would be no limit. The mai'itime Prov- 
inces are so situated that the iidialjitants on one .side of 
the Bay of Fundy are entitled to navigate the other side, 
and rice rt'i'sa. If one Province, therefore, liad the right 
to interfere with navigable tidal waters tliey would inter- 
fere with the rights of tlie other Province. I do not 
undertake to .say whether that power is inherent in tlic 
Dominion Parliament either. There may be cases even 
in which the Donn'nion Parliament could l)e restrained. 
There are certain rights of fisheries which are common, 
not only to the Province in which they are, but to all th<' 
British public and some foreigners, and if the right i-. 
conceded to a Province to interfere v/ith navigable waters 
by allowing companies to place obstructions in them, 
they might largely interfere with rights outside of the 
Province altogether. I have no doubt the Local Lejjisia- 
ture does not possess that power, it has ordy the powei- 
given to it under the Confederation Act, which gives 
them no power to interfere with tidal waters. The whole 



SUI'HEME t'OUUT OF CANADA. 



2:>9 



1883 



power ot' the Local Legislature is sheWTi to Ite restricted. 

TJiey have the pow<;r of organizing companies for local thk 

ol»ject,s alone, but it niu.st lie taken into consideration that imuving h^'Im 

these local ohjccts shall not interfere with public rights '^mJ'a^v 

[287] outside. T consider, therefore, under all the circum- "■^^""^"^'- 

stances of the case, that the Boom Co. ha<l no authority by Htnry, •'. 

tlif Act to place (jbstructions in the place they did on this 

navigable river wliere the ti<le ebbed and flowed, an<l 

where parties were in the haV)it of taking ve.ssels up and 

down. My judgment is to di.smiss the appeal with costs, 

and to confirm the judgment that was given by the court 

below. 

T.VSCHEHKAf, J. : — 

1 will not dissent from the judgment of the majority 
iii the Court, but 1 have great doubts on the (question 
submitted. There are very strong f'rounils. it seems to 
nie, in support of the contention that this bornn is a local 
work or undertaking in the Province of New Brunswick. 
Navigation and shipping are left under the control of the 
Federal authority, it is true, V»ut this, under sub-sect. 1<> 
of sect. 92 of B. N. A. Act does not extend to, tor instance, 
a line of steamers or (ithei- ships entirely within the Pro- 
vince, that is to say, plying from one part of the Province 
to another part of the same Province. That would, I 
presume, be a local utulertaking under the control of the 
Lncal Legislature. May it not be .said that the boom in 
({ue.stiou is also a local undertitking ;* 

Can it be said that the incorporation of this company 
was for Federal objects ? If it was for Provincial objects 
was it not legally incorporated by the New Brimswick 
Legislature ? 

OwYNNE, J., concui red with the Chief Justice. 




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JriKfMKNT op Palmkk. J. {■efoir irlioin f/ie caiie rant' 

iniitiinci') (1). 



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I^ikiidyKivkk 
DiiiviNO Boom 

Co.MI'ANY 

I.. Palmek, J. : — 

This is it 8i)»'cial case. Tlie luiiterial facts as stalo i tlu-roin are a»* 

Sim. C, follows: That tlie Plaintifl" is uwiier nf lauds en the sl;uio of tlit- 
At'w 

I'liuhswick. IJay of Fundy, on both hanks of a navigable liver, called the Quoddy 
I'ahner -li 'i^ivor, fiowing into it, in wliich the tide elbs and tlo'.vs for about a 
~~"~ mile, and is niiviyatod by votsels and boats when the tide is in. tlie 

jilaintirt' thereby iiavinj.; aeeess to the shore of his lan<l for the 
jiurpose nf tit)atiug imd landing logs and other tind)er there, and 
also of bringing vessels and unloading tiieni there ; in this.stiteof 
things the defendant procnri-d the passage of tlie Act t>f the (ic era! 
A8s^'ndJly of New Brunswick, 45 Vict. c. 100, entitled "An Aei 
to incorporate certain persons to be known as tlie Quedtly Uivti 
Driving and Boom Company ;'" ar.d under puweis claimed to \>l- 
given by t'l^at Act, p'aced Ijoonis across the mouth i f the said liver. 
and then drove down the river large (|uantities of logy, which weii- 
held by the l)iioni. tilling the same up, thereljy preventing he 
plaintill' frnm navigating intu the river from the I'ay and having 
acces.s to his properly V>y se i, or floating his logs and bniiber from 
his land to the si-a. 

It was admitted by the defendant's c uiiscl that ihe pnwcLs 
attempted to be given by tlu; Act could not hv exercised with.rt 
substantially and injuriously interfering with the right of naviga- 
tion as it before existed on the i iver ; and so n.atevially aflected t! e 
plaintitrs means of access to his property, for the purposes afore 
said, sutticient to entitle him to have an injumti ii order to restrain 
such interference, if the New Brunswick Legislature had no powti 
to authorize the Company to interfere wi'h such navigation; aid 
the coinisel agreed that the only que.-tion tliat should be arguid 
before me was whether, under such c rcumstances, that Legislature 
had such power. And 1 was to answer the two (jue-tittns in the 
case : first. Could the Legislature of New Brunswick give the povvti 
claimed by the defendant's Company, under which they erected and 
maintjiined the booms .' Second, Wert the acts done by the 
Company within the powers given by the Att f 



(1) [The jnd^'incnt of Palmer, J. is for the hearingin t Ik; Supreme Ci nut 
taken from the apiit'albook printed i>f Canada). 



SITPRKMK rOFHT OF CANAOA. 



261 



Thfi admission of tlie counsel on tlie aigumont, that wliat tlu- IrtKi 

defendants claimed to have dune, if authorized, is an ahrid;,'enicnt ■" 

of tlie public right to navi<,'ate public tidal waters of the Dominion, (/iicddyHivkk 
and altliougii the Ac*^^ provides by tho 22nd sect, that the works Company 
authorized In- it wer.' to lie idacod so as not to unnecessarily i' 

. . , , , , I>AV1I>S()N. 

iuter'e e w th the navigation ; yet as nothing could be done \inder 

file Act without so int rfering, and if the works professed to be ' 'JJ'' ' 

=" ' New 

auiliorized by the Act are placed in the river, they will ne(>essarily lirnnswick. 
largely interfere with tiie navigation therecit, it follows, I think. Palmer J. 
tliat such Legislature has attempted to authorize tlie interference 
with, altering and abridging the public right of navigation in public 
tidal waters, and to s mie extent attem))ted to extinguish the public 
right of navigation tli'ieiii. And the only ipiestion that remains 
is, — as was admitted on t'le argument, — Whether it has power to do 
s'l ' I have a clear opinion that it has not, and conseipieiitly thit 
• all [larts of the Aci that attempt to confer such j»owers on the 
C'lUipany are uJfni rir<s, an<l to that extent \ipid. The counsel having 
inf'irmed me that an ai)peal is to be taken from my decision to the 
S''.(iieme Court of Canada, no matter how I decide, and both par- 
ties are anxious for a speedy judgment, I will give, shortly, s<ime of 
the reasons for my opinion, not having time to go into the subject 
to the length that its impoclanee would app(^ar to reipiire. 

The short argument in favour of the plaintifl's contention is that 
as by the !>lst sect, of the ii. N. A. Ac', sub-sect. 10, the I'arlia- 
lucut of Canada is given exclusive power to legislate in relation to 
ill! matters coming wit inn tiie subject of navigation and .shiijping ; 
aii'l that they alone iiave such power, it being manifest that tlie 
taldui away of the right t<> navigate from the public is a matter in 
ivlation to navigation. 

The defendants' cinu'iitioii is that th- Local Legislature js given 
exclusive power to legislate with reference to pro])crtj- and civil 
lights, also h)cal works and undHrtakings, and also i' corporation of 
cnajianies witli Pimiiuial objects. With reference to property 
and civil rights it wa.s admitted that if the subject came within any 
of t';(; clfiss of subjects enumerated in the '.Ust see'., then the 
Dnminioii Parliament would have exclusive po.ver : liut it was con- 
teided that if it came within local works, etc , and in (U-der to 
etlectually legislate on that subject, it was necessaiy to legislate to 
some extent upon a subject mentioned in sect. 01, the Local I'arlia- 
nient could do so unless the Federal Parliament had itself passed 
Acts imonsistent with such legislation ; and it was further con- 



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SUPREME COURT OF CANADA, 



tended that the iuturl'erencu witli navigation by a boom comi»any, 
did licit come within tlie imaning of the word navigation in the 
i^iKDDV KivKU 10th sub-sect, referred to ; and force was given to this contention 
'* Co»u'\nv''^' ''y ^^'"^^ ^^'^8 '*'"^^ ''y ^'^''^f Justice Allen in MrMilUtn v. The Sunth- 



1888 



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irvnt liiiom Compuiiti, (1). 

As to sub-sect. 11 of sect. 92, " The incctrporation of comi)anie8 
with Provincial objects " : whenever powers were given to coniimnics 
Brunswick, that do not belong to the subjects over which the provincial Parlia- 
I'aluiHr .1. Jut'nt has power to legislate, it appears to iiie it cannot be said to be 
a company with provincial objects ; when a company is given the 
right to take away the public right of navigation, if such be a 
Federal and not a provincial matter, I think such company is not a 
comi>any having only Provincial objects, and therefore not within 
tile 11th sub-sect, at all. The same answer may be given to the 
argument upon the 10th .'siib-sect. If powers are (.(iven, that do not 
belong to the Local Legislature to give, and the Federal alone can 
give, then it is not local, for the concluding clause of the Olst sect, 
enacts that any matter coming within any of the classes of subjects 
enumerated in this the Ulst) sect, shall not be deemed to come 
within any of the classes of matteisof a local or private nature, 
comprised within the classes of subjects assigned exclusively to the 
Provincial Legislatures. Then the only ciuestion that remains is, 
tloi's the riglit to legislate in rel-ition to the public right of naviga- 
tion in the navigable tidal waters of tlie Dominion come within any 
of the classes of sul>ject8 mentioned in sect. 91, and notably sub- 
sect. 10, the words of which are navigation and shipping ! Surely 
when a LegisLture attenapts to abridge, alter or take away the 
public right of navigation, that is, when a right exists for the ))ublio 
to navigate ships over and upon navigable tidiil water.-, and that 
right i.s abridged, altered or taken away by a law made for that 
[jurpose, the making such law would be nuvking a law in relation to 
navigation, and 1 should think shi|)ping also. 

T(i navigate is to pass by water*, and the right to navigate, or of 
navigation, is the right to pass by water, and I cannot conceive a 
more certiiin exposition than to say, that when the right to pass 
by water is legislated away, that the law made for that imr- 
poso is a law in relation to navigation, I confess myself wholly 
unable to bring my iniud to assent to the proposition of Chief 
Justice Allen in MrMillnn v. The. Soxthiced Boom Compami, (1) 



(1 ) IP. and B. 715 ; nnie vol, 2, p, 542. 



SUI'RKMK ( oriir OF CANADA. 



'2{j:\ 



e, or I'f 

loeivf a 

to pass 

it pur- 

wliolly 
Chief 

U!,, (1) 



win re lie says that lio ia " incliiud to tliiiik that tiic word ' naviga- IWK* 

tiiiii,' used in coiinectiuu witli 'shipping,' was not intended to havi- ~~ 

such a construction (to authorize the construction of booms); but, "^ueddy River 
tha* it was used in the sense in which it is used in the several Acts Comp^^^y 
i t' Pailianient of (4reat Britain relating to 'navi''ationand shipping.' ''• 

I I.WIUSON. 

and in the Act of the Parliament of (Janada, 31 v ict. cap. 58, 

namely, the right to prescribe rules antl regulatiin.s tor vessels U'* •' 

iiaviiiating the waters of the Dominion." 1 cannot think the w(>rd Brunswick, 
has, <ir was intended to have, any audi restricted meaning eitlier in puinitr ,1. 
the B. N. A. Act or the Acts that he has referred to. It api)ears to 
me the 31 Vict, uses the word navigation in a wider sense, for 
AitickM21 and 22 relate to placing rafts in Sorel Harbour, which is 
the very subject of tlie legislation in contest in this suit ; and it 
.'ippears to be more than a mere right to prescribe rules and regula- 
tions for vessels navigating the waters of Canada, unless, toi's(joth, 
the keeping open of the navigation for the purpose of allowing such 
vessels to pass can be said lo be prescribing such ruh-s and regula- 
tions ; for, if the moaning ol the word was narrowed, so as only to 
mean the powers to make rules for navigating the navigable waters 
(if thi' Dominion, and a person was desirous of running steambcats 
and other vessels between Newcastle and a point on the MiraMiichi 
river, above the Southwest Boom, and the Federal Parliament had 
tlie exclusive right to roi^nlate how tlie vessels engaged sliould be 
navigated in that passage, if the L'lcal Parliament by incorporating 
a Boom Company could take away such right of navigation by 
authorizing a boom across the river, and tilling the river for miles 
with logs, this it appears to me would be entirely inconsistent with 
tlie power of the Federal Parliauient so to regulate. This being my 
view, 1 do not think I t)Ught to consider myself bound by what is 
stated in that case ; it not being necessary for the decision of it, and 
therefore, obiter dictum. And as I know that it is intendetl to 
iippeal this case to the Supreme Court of Canada, 1 think the par 
ties are entitled to have my own ojiinion, although under other 
circumstances, 1 might hesitate to act on it, however strong, when 
opiiosed to the views of the learnedChief Justice, for whose opinions 
I have the most sincere respect. 

It is claimed by the defendants' counsel that the Provincial Legis- 
latures might exercise the powers mentioned in sect. 91, to some 
extent, when, as in this case, the matter comes within one of the 
subji its mentioned in sect. !)2, that is to say, property and civil 
rights, until the Parliament of Canada had itself legislated on 










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SUPHEMK cm RT (iF CANADA. 



1n8J< thftt subject, siiineihiiij,' in tho saim wiiy as wan decidtd in <'ivi/<ji v. 

r^ Kliui', fl) iniyht ho doiio I)}- a State Legiwlaturo ; but there in, I 

Qi'KDDvHivKK tliink. a iiiiirkffl ilistinction botween our Cnu^titulinn and tlial of 

CoMi'ANY "" L iiiteil StateH, nut only in tho rospoct pointed out l»v iiu' n 

i". Tbr (huii, V. Till" Vitii of Fii'ilt'virtiiii, (2) but also in rerereuce to 

Kavihsdn. ■■,'", 

tlu> way the powor oi Ic^'imation is granted in the rospoctive caneit 

\* w ^^ ^'"^' Anierican Constitution. Whatever power i- in the Fedei 1 

Hnmswiek. Ijogislaturo was granted liy he States, thoy having the [lowor sn 
I'ahnin, •!. gi'initiul before : and I am nut a\v/uv tliat words are used in tlie grant 
to sliew that such |) 'Wer.s were to be exclusively exercised by tlio 
Federal Legislature, and tlierefon.' such grants might not in ;dl 
cases be construed to Vif an absolute i>rohiliition of all power over 
tlie same subject by the State. 

On this subject. Chief .lustice Ta'icy i'l tlio fjirfm^r C'l/scs, (3; says : 
" It ajijiears to nn- to be very clear that the mere grant of power to 
the (Jeneral (Jovernment cannot, upon any just principles of ccn- 
structitm, be construed to lir jui absohit' i)rohibiti"n to the exercise 
of any jtottor ovei- tin- same snbji.rt, by the States;' and on this 
]n'iiKi[)le it is that, in i he ca.se of i'rniti v. Kline (I), the Legislature 
of ihe State of Pennsylvania was allowed to inteifere with the right 
of navigation : and the same learned .Jurist, in the case of C("</p;/ v. Tin 
hitanl i>f \V(i,;l> iisiiffhi I'<irt <>/ IViiliiili'lj)l,i,i (-1), says : "The grant ,,i 
power to regulate coninierce is not exclusive ; lint, the question in 
each case depend^ uiion the character of the subject ; some ie((uii lUg 
it to be exclusive, and others not .so." (5) On the other hand, our 
Constitution being, in my ophiion, the entire creation of the V>. N. A. 
.Act. neither Legislature has any power except what is conforre 
on ii by that Act. -it follows that when power is claimed by eith. r 
body, the grant of such power must be looked f' r by a fair con- 
struction of the Act itself, and in doing this each case must ' e 
decided as it arises by projierly corn-truing the language if (lio 
different sections of the Act, so p.s to reconcile the powers given to 
eivch Legislature, according to the intention as i.s expressed by every 
word in the Act. Fnder such a Statute, I cannot see how the fact 
that the Federal Parliament have or have not attempted to exerc se 



1 ■ [\ 



II) tiSPemi. ,W.). 

(2) .S V. & P.. 139. 

(3) 5 Ho^^•ard .")04, 57!). 

(4) 12 Howard, 2!«). 

(.^) [The reiH'it in I'J Howard does 



not appear to contain the words 
quoted. The judgiii'^nt of the iim- 
jorityof the Court, as there reported, 
is stated to liave been delivered bj' 
Curtis, J.] 



U 



SUPRKMK COURT OK (*ANA1>A. 



lC).") 



the piiwers exuliiHively given to it, could either authorize or prevent 1fW» 

tht' Loyi^latuioa of the I'roviuces exercising any power-- given to '^~ 

them. What 1 liavu to do is to say what power is given to eaeh (^ikudy River 
liOi^ishvlure l»y the fair meaning of all the words used in the Act ; Comi-'vny 
and when it says that exclusive power is "ivon to one liody to legis- '• 

late ui relation to a particular sunject, it is only common .sense tn 

.-ay that the Imperial Parliament intended that the other body '^>M>- t-, 
should have no power whatever to legislate on any matters that UmuHwick. 
were fairly cominchendcd within that subject. It follows that when Palmer .J. 
till! Act say.s that the Parliament of (Vnada shall liave oxclusive 
power to legislate in relation in iiav gatinn— and all the cases shew, 
even including the American nnes 1 have referred to, that enacting 
any law affecting the public right of navigation, or of passing over 
navigable waters, is legi.slating ou tl.at subject -that no other Legis- 
latr e mentioned in the Act can legislate on tlie .same subject, ;ind 
therefore such legislation is ultni rlrc.i of the Local Legislature. 
The deniurror therefire will be over-ruled, with costs. 





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<>it ii/ipeal fnnii the Ctiurt of foiniiion flea.'*, 

[Heporhd (1 App. Hep. (Out.) 'W9]. 

litnifcniptcji (iruf' Iiisnlnnvti — Property und rirll rights — •"IS I'irt. c 

Id, a. }.{(!, U. 

I'lie Dominion T'iU'liainont, hy its Ins.jlvent Act of 1875, enacted 
tliat any person who purchased -^'nods on ciedit, knowing or 
believing himself to l)e unable to meet his en!,'agement8, and 
concealing the fact with intent to dctVaud, and who does not 
afterwards pay the debt, shall be lield guilty of a fraud and be 
liable to imprisonment tor two years unless the debt and costs 
aie soonei' paid, provided that in the suit fur the recovery of 
the debt, the det'cndaTit is iharged with the fraud and declared 
guilty of it by the judgment rendered in the suit. The plain- 
titl's sued lor goods stdd ;ind delivered to the defendants who 
afterwards became insolvent under the Act, and charged them 
with fraud in the terms of the Act. 

7i<7(/ by a majority of the .Judges of the Common Pleas, by two 
Judges of tlie Court of Appeal, and by three Judges of the 
Supreme Court (the other three giving no opinion on this 
point), that the enactment is within the competence of the 
Dominion Parliament. 

This was an appeal from the judgment of the Court of 
Common Pleas (1) in favour of the plaintifis. 

The appellants' reasons of a[)peal were, that the judg- 
ment of the Court of Common Picas was erroneous, and 
ought to be reversed, for the following amongst other 
reasons : 



•Present:— SpRACiGK, C..T.O. and Bdkton, PATTEKSONandMoKKisoN, JJ.A. 

(I) 31 U. C. C. r. 112. 



i:! 



s I 



ONTAUIO COIKT OK AI'I'KAI,. 



207 



1. The all(!go<lfrau(lul«!nt act liavin^f l)oen committed in 
aiiotlier country, is not cojjfnizahic in tlui (*onit,s of this 
I'lovinco if it is a crime, or even if it is a mere penal ]>yi>- 
ceedinj^', inasmuch as th(^ statute does not profess to include' 
crimes conunittcul outside of the Dominion of Canada. 

2. If the alle<,'ed fraudulent act is not a crime, then 
sects. 130 and 137 of the Act are ultra vires ui the Parlia- 
mejit of the Dominion, in that they assume to provide for 
[040] civil procedure in Provincial Courts, wldcli is a 
matter within the exclusive iurisdiction of tlie Provincial 



Legislature. 



The respondents' reasons against tl\o appeal were, that 
the jud^nnentof the Court of Common PI .is wa.s not c o- 
neous, and ought not to l)e reversed, for the following 
amongs other reasons: 

I. Even if the fraudulent act complained ot he a crime, 
it is cognizable in the Courts of this Province, even though 
it was connnitted in finother country, the said Courts 
having had conferred upon them common law jurisdic- 
tion by the Imjierial Parliament in 1792. The Impeiial 
Parliament has power to enact that any offence against 
its laws, whether connnitted within or without its domin- 
ion, is a crime, an<l punishable according to its laws, when- 
ever the offender is tried within its territorial limits 
(Maxwell on Sttitutes, pp. 119-122, 120-7), and the Imperial 
Parliament conferred upon the Dominion Parliament 
eijual powers as to govei-ning those i-esident in the 
Dominion. The Insolvent Act deals with " all creditors," 
barring their claims, and extetiding to them all the benefits 
of the Act, .and thus does profess to include within its 
provisions offences by the insolvent against his creilitors, 
whether such creditors be resident within or without the 
Dominion, if the redress be sought in the Courts of the 
Dominion again,st the insolvent, then within the jurisdic- 
tion of such Court. 



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ONTARIO rOURT OF APPEAL. 



2. If the fraudulent act is not a crime, there seems to 
be no doubt it is intrd vires of the Dominion of Canada 
to provide for civil procedure. In dealing with Dominion 
laws the Dominion Parliament does not recognise pro- 
vincial limits; it enacts foi" the Dominion as a whole 
without territorial distinction, else the anomaly would 
exist of its being compelled to ask the several Local 
Legislatures to assist it in the administration of its own 
laws. See N'tngara Election Case. (1) and Valin v. 
Lanijlois (2). 

[041] Befhune, Q.C., fur the appellants. 

./. E. Rose, Q.C., for the respondents. 

Si'HAG(;e, ( '. J. O. : — 

The plaintiffs sued in the Court of Connnon Pleas, 
under sect. ISO (••}) of the Insolvent Act of 1875, to 
recover the value of two parcels of goods sold by the 



(1) 29 U. C. C. 1'. 2G1. 

(2) DApp. C.as. 11.-) ; a„t< vol 1, 
p. 158. 

(;<) Insolvent Act of I87.j. 38 Vict, 
c. 10, ». 130: "Any person who for 
liinisolf or for any firm, p.'irtiifrship 
or company of which he fornl^< part, 
or as the manager, t;u.-«tee, at'eiit or 
employee of any person, tiiin, co- 
liartnersliip or compatiy, purcha•:e^ 
goods on credit, or procures any 
advance in money, or procures the 
indorsement or acceptance of any 
negotiable paper without considera- 
tion, or induces any person to heconie 
seciu'ity for him knowing or |lia\ ing 
prohable cause for, 40 Met. c. 41, s. 
30| believing himself or wuch i>ei-son, 
tirin, co-pnrtner.ship or comi).'iny for 
which he w acting to be unable to 
meet his or its ongagenients, and con- 
cealing the faet from the iHJi-son 
thereby becoming jii« creditor with 



the intent to defraud such person or 
who by any false jiretence obtains a 
term of credit for the payment of any 
iwlvance or loan of money, or of the 
price or any part of tlie ])rice of any 
trood.s, wares or merchandise, with 
intent to defraud the iier.son tliereby 
Ijfcoming his creditor, or the creditor 
of such jjerson, firm, co-partnership 
or com])any, and who shall not aftei'- 
wards have paid or caiised to be paid 
the debt or debts so incurred, shall 
Ije held to be guilty of a fraud, and 
shall Vv liable to imprisoiunent for 
such time iiK the Court may order, 
not exceeding two years, unless tlie 
debt and costs be sooner paid ; Pro- 
vided always, that in tlie suit or 
proceeding taken for the recovery (if 
such debt or debts, the defendant be 
charged with such fi'aud, and be 
declared to be guilty of it by the 
judgment rendered in such suit or 
proceeding." 






ONTARIO COURT OF APFKAL. 



269 



own 



plaintiffs to the defendiints. The allegatiuns in the i«8i 
second eonnt of the dcclanition are sufficient to bring the p^^,^ 
case within the section which I have quoted. The third yHiELDs 
plea alleges that the contract out of which the alleged ^ ,,,,, 

cause of action arose was made in the United Kingdom, 
and not within the JJominion of Canad".. To this plea 
the phiintiff demui'red ; and upon the argument of the 
demurrer it was ngree'l that the jdeadings should be 
amended hy alleging t'at thedefendants were traders and 
British subjects, resident and domiciled in the Dominion 
of Canada, at the time of the purchase of the goods in 
question, and suV)sequently became insolvent under the 
Insolvent Act of 1875, and amendments thereto. Judjj- 
inent was given for the plaintiffs uj)on the demurrer by 
the majority of the Court, the learned Chief Justice dis- 
senting. The defendants liave since been allowed to [dead 
that they have obtained their discharge. 

The tirst ([uestion for the decision of the Court was, 
whether the statute makes the obtaining of goods by a 
trader afterwards becoming insolvent, under the circum- 
stances stated in the declaration, a crime or offence, and 
the proceedings authorized by the statute criminal pro- 
cerdings for its punishment. The second (piestion was, 
as put by Mr. Justice Osier in his judgment, whether this 
oroceeding is a matter of civil procedure, or connected 
with civil rights, and therefore ultra vircKoi the Dominion ' 

Legislature, or assuming that the Legislature had power 
to provide machinery for the administration of the Insol- 
vent Act, as a means of distributing the estate of an 
|<)4<2] insolvent and giving or refusing him his discharge, 
they could give a crerlitor any additional remedy for the 
recovej-y of his debt. 

The first question has been dealt with very elaborately 
in the judgment of Mr. Justice Osier, in which he has 
leviewed t ■ e cases bearing upon the point. I so entirely 



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ONTARIO COURT OK APPEAL. 



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agree in the conclusion at wliich he has arrived, ami in 
the rea.soning by which he has reached that conclusion, 
that T feel that I caunot usefully add anything to the 
judgment which he has delivered. 

'J'he second (|uestion re(][uires consider"^' i. The 
B. N. A. Act assigns to the Provincial Legislature exclusiv^e 
powers of legislation in a number of clas.ses of subjects: 
among theui " Pro{)erty and Civil Rights in the Province," 
and "the Administration of Justice in the Province, 
including the constitution, maintenance, and organization 
of Provincial Courts, both of civil and of criminal jurisdic- 
tion, and iucluding procedure in civil matters in those 
Courts." Section 130 of the Insolvent Act does uncpies- 
tionably touch and affect " Property and Civil Rights," 
and also procedure in a civil matter in the Courts of the 
Piovinces ; but among the jjovvers of the Parliament of 
the Dominion we find legislation upon " Banki'uptcy anil 
Insolvency." 

The observations of Sir Montague Smith, by whom tlie 
judgment of their Lordshi|)s was delivered in the P>-ivy 
(youncil in the case of Caslibuj v, Dwpajj, (1), are 
apposite to this i)oint : " It was contended for the appellant 
that the provisions of th.e Insolvency Act interfered with 
propert}' and civil rights, and was tlierefore nltra vires. 
This objection was very faintly urged, but it was strongly 
contended that the Parliament of Canada could not take 
away the right of ap|)eal to the Queen from final judg- 
ments of the Court of Queen's Bench, wliich, it was .said, 
was part of the procedure in civil matters exclusively 
assigned to the Legislature of the Province. 

" The answer to these objections is obvious. It would 
be impossible to advance a step in the construction of a 
[043] ."^cheme for the administration of insolvent estates 
without interfering with and modifying some of the 

(I) 5 Apj). Cas. 401), 41.5 ; aiitr vol. 1, p. 252. 



« ' 



ONTARIO COURT OF Al'PKAL. 



271 



■ i i 

iiil 



onlinaiy rights of property, and other civil rights, nor 
without providing some mode of special piocedure for the 
vesting, realization, and distribution of the estate, and the 
settlement of the liabilities of the insolvent. Procedure 
must necessarily foini an essential part of any law 
dealing with insolvency. It is therefore to be presumed^ 
indeed it is a necessary implicatiim, that the Imperial 
Statute, in assigning to the Donsinion Parliament the 
subjects of bankruptcy and insolvency, intended to coufei- 
on it legislative power to interfere with property, civil 
rights, and procedure within the Provinces, so far as a 
general law relating to those subjects might affect them." 
In Valiii v. Laihilois, also in the Privy Council, reported 
in the same volume (1), where also the power of legis- 
lation by the Dominion Parliament was brought in question, 
Lord Selborne said, at p. 118 : "It is not lo be presumed 
that the Legislature of the Dominion has exceeded its 
] lowers, unless upon grounds really of a serious chai-acter." 
1 may lie permitted to add my own view of the powers of 
the Dominion and Provincial Legislatures respective!}' in 
a case in the Court of Chancery: Smith v. Merchants 
Bank (2). " Legislation upon property and civil rights in 
tlie abstract is conmiitted to the Provincial Legislatures ; 
but where they are affected only by the legislation of the 
Dominion Parliament upon subjects upon which the 
Parliament has express authority to legislate it camiot bo 
an invasion of the functions of the Provincial Legislature 
for the Parliament so to legislate. To hold otherwise 
would be to nullify the powers of Parliament, not only in 
its legislation upon the two subjects to which 1 have 
expressly referred, but upon many other subjects which 
are made expressly subjects of its jurisdicti(m ; not 
[G4-4] certainly less than one-half of the twenty-ninesub- 

(1) 5 App. Cas. 115; 0(1^' vol. I, p. I'jS. 

(2) 2« Grant rt21t; ivitr \„\. 1, p. Hl»S. 



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ONTARIO COURT OF APPKAL. 



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jectsiii whicli oxclusive legislative authority is given to the 
Dominion Parliament." 

In the Niagara Election. Case (l),C,'luef Justice VVilsou 
and Mr. Justice Gwynne, then in the Common Pleas, have 
ver\' lucidly (if I may be piM initted to say so) explained 
the relative I lowers of the Dominion and Provincial Lcis- 
latures. Val'in v. Lunifloh (2), to which 1 have already 
referred, is in affirmance of this judgment of our Court of 
Connnon Pleas. 

We must approach the consideration of this branch ot 
the case before us, having regard to the principles enunci- 
ated in the two cases I have referred to in the Privv 
Council ; but still if in our judgment the Dominion Parlia- 
ment has in this matter exceeded the authority cimferred 
upon it by the B. N. A. Act, it is our duty to say so, and 
to adjudge accordingly. 

The power of legislation conferred upon the Dominio)) 
Legislature is comprehensive. A.fter the general |)ower 
conferred by sect. 91, it proceeds to give exclusive legis- 
lative authoi'ity, and says that it: extends to all matters 
coming within the clas.ses of subjects enumerated. S<> 
applying it to the subject matter in question, the authority 
conferred extends to all matters coming within the terms 
" Bankruptcy am' Insolvency," or, as put in the earlier 
part of the section, in relation to all matters not coming 
within the classes of subjects assigned to the Provincial 
Legislatures, and therefore in relation to bankruptcy and 
insolvency. 

It cannot, I conceive, be contended that any enactment 
by the Dominion Legislature making the same provision 
in respect to an insolvent and his dealings with creditors 
before a.ssignment or attachment, as was at the date of 
the passing of the B. N. A. Act by an Act of the Imperial 
Parliament in force in England in respect to bankruptcy 

(1) 29 U. C. C. P. 261. (2) 5 Ajip. Caw. \\h : ontr vol. I, p. WS. 



Hi; 



ONTARIO COURT OF APPEAL 



278 



legis- 
Inattei's 

:d. So 

,hority 

earlier 
joining- 
Ivincial 
|cy and 

.'tment 

)vision 

leditors 

Llate of 

kipevial 

jvuptcy 

Il58. 



before adjudication, would be ultra vires. I take this to 
be too clear for argument. The Act in force in flngland 
at that date was the Bankruptcy Act of 18G1. 

Our Insolvency Acts of 1864, 1869, and 1875, were 
[64.>] taken in a large measure from that Act, and it may 
be from subsequent Acts, but for the purpose of the posi- 
tion I am taking I confine myself to that Act. By the 
10th clause of sect. 221, acts by a trader of a similar 
character to those dtifined by sect. 130 of our Act are dealt 
with. Section 221 makes it a misdemeanour punishable 
with imprisonment for the trader to do ce tain acts, one of 
these being by clause 10 defined thus : " If being a trader 
he shall, within three months next before the filing of the 
petition for adjudication, under the false colour and pre- 
tence of carrying on business and dealing in the ordinary 
course of trade, have obtained on credit from any person, 
any goods or chattels with intent to defraud." It was 
competent to the Dominion Legislature in legislating upon 
bankruptcy or insolvency to make an enactment in the 
same or the like terms or as it has done, in the terms of sect. 
186 ; and if it thought fit, to annex the same jienal con- 
sequences to the cununission of the act ; but surely while 
dealing with the act it was not bound to annex to it the 
same penal consequences. 

It was an enactment falling properly within the purview 
of a Bankruptcy or Insolvency Act, and provided for a case 
proper to be made an exception to the other cases of the 
contracting of debts by the insolvent. Can we say, in tht' 
face of the comprehensive terms in which power to legis- 
late upon this subject is given to the Dominion Legis- 
lature, that it had not power to annex to the commission 
of this fraudulent act such penal consequences, or con- 
sequences not penal, as it might think fit ? It was put 
in argument that the penalty prescribed by our Act is not 

a necessary incident to the winding up of the estate ; that 
W 



1881 
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Sprag^, C.J.O. 



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274 



ONTARIO COURT OF APPEAL. 



the money recovered does not go into the general estate ; 
but the same may be said of the penal consequences 
attached to the like fraudulent act in England. And it 
may be asked who is made the judge of these things ? Is 
it a Provincial Court or the Dominion Parliament ? 

Then can it be said that sect. 136 cannot be carried out 
without an unwarrantable interference with that which is 
[646] of the exclusive function of the Provincial Legis- 
lature. In my opinion it can. What are the real nature 
and effect of this provision ? It deals with an insolvent 
who has been brought within the jurisdiction of a Court, 
the creation of the Dominion Parliament, and within the 
provisions of a law which places him as one of a class upon 
a different footing, as regards his property and his person, 
from others of the Queen's subjects. The Legislatu? 3 had 
authority to say that as to debts fraudulently contracted, 
they should be dealt with in an exceptional manner ; that 
as to them there should be no composition, but that they 
should be payable in full ; and that as a punishment for 
the fraud he should be imprisoned for two years. The 
Legislature has not said quite all this, but still dealing 
with it as an exceptional ca.se, because a case of fraud, it 
has provided more stringent means for its recovery than 
in the case of ordinary debts of the insolvent ; and after 
all has dealt with it only as the Legislature of Ontario has 
dealt with fraudulent debtors outside of the Insolvent 
Act. 

How then does this section interfere with that which is 
the exclusive function of the Province, its legislation in 
relation to property and civil rights ? That has been 
dis[)osed of beyond a question in the judgment that I have 
quoted of Sir Montague Smith. As to the Administration 
of Justice in the Province, it admits of a like answer, and 
this further, that only in so far as proceedings in insolvency 
are a part of the Administration of Justice does it inter- 



^i 



ONTARIO COURT OF APPEAL. 



275 



^hich is 
■ttion in 
been 
, I have 
Itration 
ler, and 
jlvency 
It inter- 



I8«l 
Pkek. 

V. 

Shiklds. 



fere at all, and as to that its power to interfere is given by 
the same authority as are the powers of Provincial Legis- 
latures; and as to the constitution, maintenance, and organ- 
ization of Provincial Courts, it does not interfere at all. si)ra}.^i^c.J.o. 
Then does it interfere with Provincial legislation as to pro- 
<!edure in civil matters in those Courts? This admits of 
two answers — one that it only applies to and does not 
interfere with, the procedure in civil matters — not inter- 
fering at all with Provincial legislation upon that subject. 
The other answer is, that Insolvent Courts are not 
[647] Provincial, but Dominion Courts, constituted for the 
sole purpose of administering a law of the Dominion, and 
with power incident to their functions, to frame a pro- 
cedure of their own or to adopt the procedure of Provincial 
Courts in civil matters. And I may here notice that Sir 
Montague Smith, in the passage that I have quoted from 
his judgment, refers repeatedly to interference with pro- 
cedure as a power intended to be conferred upon the 
Dominion Legislature in matters of bankruptcy and insol- 
vency, as well as power to interfere with property and 
civil rights. 

It appears to me to be very clear from the language that 
I have quoted from the B. N. A. Act, that the Imperial 
Parliament intended to confer upon the Dominion Legis- 
lature full powers to legislate (inter alia) upon all matters 
in relation to bankruptcy and insolvency, whether such 
legislation should have the effect of interfering with pro- 
perty and civil rights, or the Administration of Justice, 
outside of the law relating to bankrupts and insolvents, 
or with procedure in civil matters, or not. To interpret 
the Act otherwise would cripple the Dominion Legislature 
in the exercise of its powers, where full powers are intended 
to be conveyed. In my judgement the proper construction 
of the B. N. A. Act necessarily leads to the conclusion that 
the power to pass such an enactment as sect. 13G was con- 



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ONTARIO COURT OF APPEAL. 



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ferred upon the Dominion Parliament, and the provision 
of the bankruptcy laws in England, at that date, confirms 
me in that opinion. I should come to that conclusion 
independently of the cases in the Privy Council to which 
I have referred. Those cases give the sanction of the 
highest authority to the position that in my judgment is 
the correct one. T cannot assume that the Dominion Parlia- 
ment would, under cover of a Bankrupt or Insolvent Act, 
make any enactment not. fairly falling within the scope of 
those subjects. If it should do so, it would be a colourable 
Act ; and if an invasion of the powers conferred upon the 
Provincial Legislature, the Courts of the Province would, 
I have no doubt, know how to deal with it. 

[648] Burton, J. A. :— 

It was admitted on l)Oth sides, on the argument, 
that the broad question intended to be raised on this 
appt al was whether sect. 136 of the Insolvent Act applied 
in the case of a debtor, resident and domiciled in Ontario, 
contracting a debt in England under the circumstances 
referred to in that section as subjecting the debtor to 
imprisonment if found guilty of the fraud alleged, if it had 
been committed here — the debtor having subsequently 
become insolvent under the Act of 1875 — and that any 
amendment necessary to raise that question should be 
made or considered as made. < 

Whilst differing with the Court below in the reasons 
given for their decision, I have arrived at the same result. 

I differ from them in the view they take of the power 
of the Dominion Parliament to enact the section in 
question, which, for convenience, I will again repeat in 
substance. 

Any person who purchases goods on credit, knowing or 
believing himself to be unable to meet his engagements, 
and concealing the fact from the person thereby becom- 



ONTARIO COURT OF APPEAL. 



277 



Pkkk 

V. 

Shikldh. 



ing his creditor with the intent to defraud such person, I88i 

and who shall not afterwards have paid the debt so 

incurred, shall be held to be guilty of a fraud, and shall 

be liable to imprisonment for such time as the Court may Burton" J. A. 

order, not exceeding two years, unless the debt and costs 

be sooner paid. • 

I tliink, for the reasons I shall presently give, this was 
clearly beyond the power of that Legislature to enact. 

Apart from the observations of Sir Montague Smith, in 
delivering the judgment of the Privy Council in Cushiiig v. 
Dwpiiy (1), to which we were referred, I should have sup- 
posed it to be a self-evident proposition that, when the 
Imperial Parliament conferred upon the Legislature of the 
Dominion the exclusive power of dealing with bankruptcy 
and insolvency, it followed, as a necessary implication, 
that, so far as it was necessar}' for the working of any 
measure passed with that object, and for providing a pro- 
cedure for the vesting, realization, and distribution of an 
insolvent's estate, that Legislature must have the powej- 
[649] to interfere with property and civil rights and pro- 
cedure within the respective Provinces. 

It does not appear to me to be safe to say tliat the 
Dominion Parliament would, under the powers given to 
them to deal with bankruptcy and insolvency, necessarily 
have authority to enact similar provisions to those to be 
found in the Bankrupt Act in England at the time of the 
passing of the B. N. A. Act. The Imperial Parliament 
having power to deal generally with all subjects, and 
having power to deal with the criminal law, no question 
could possibly arise there, although the enactment might 
deal with matters not coming strictly within the scope of 
a law relating to bankruptcy ; but assume for the moment 
tlmt the criminal law had been placed under the exclusive 
jurisdiction of the Provincial Legislature, I should suppose 

(I) 6 App. Cas. 409 ; arUe vol. 1, p. 252. 



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278 



ONTARIO COURT OF APPEAL. 



n- 



it to be too clear for argument that the Dominion Pailia- 
ment would have been confined to the enactment of such 
provisions as would secure the realization and equal 
distribution of the insolvent's estate, with power, no 
doubt, to punish fraudulent conduct on the part of the 
insolvent by the withholding of his discharge, but that it 
would be clearly in excess of their powers to declare any 
violation of its provisions or any fraudulent or dishonest 
conduct of the insolvent a felony or misdemeanour punish- 
able by imprisonment in the Provincial Penitentiary. 

The Provincial Legislature would, in the case I have 
supposed, have the exclusive power to say whether certain 
acts, declared by the Insolvent Act of the Dominion to be 
fraudulent and such as would be sufficient to prevent the 
insolvent from obtaining his discharge, should also be 
made criminal offences subjecting him to the risk of being 
indicted and tried for them as a criminal. 

The Dominion Parliament has power, however, to deal 
with the criminal as well as the insolvent laws, and there- 
fore one is not surprised to find that they have in many 
respects followed the Imperial legislation on a similar sub- 
ject, and declared many things to be misdemeanours which 
are also misdemeanors in the English Act. 

[650] I may say, however, that no such enactment as 
sect. 130 is to be found in the Imperial Act; it is as 
regards bankruptcy proceedings, .^ui generis, and I may 
add seems opposed to and inconsistent with the generally 
entertained idea of a Bankruptcy Act, the general scope 
and object of which is to secure an equal distribution of 
the debtor's effects among the creditors. 

I have nothing to say against the policy of a law which 
punishes with imprisonment for a certain time, or until 
compensation is made to the creditor, a debtor who, hav- 
ing reason to believe that he is unable to meet his engage- 
ments, and concealing the fact from his creditor, obtains 



ONTARIO COURT OF APPEAL. 



27!> 



gage- 
stains 



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cii'tlit with intent to defraud ; but there is no special ren- I88i 
son why that should apply to an insolvent in the legal 
sense of the term more than to any other person who thus 
fraudulently contracts a debt and then refuses to jiay ; and BurtoiTj.A, 
it seems to me, therefore, to be a matter not only not 
within the general scope of an Act for the administration 
of an insolvent's estate, but opposed to the spirit of such 
an enactment. It is in point of fact providing an addi- 
tional remedy to the creditor so defrauded for the recovery 
of his debt, and so comes exclusivel}' within the power of 
the Provincial Legislature. 

'J'he Legislature of Canada did, it is true, before confed- 
eration, by the Act of 1864, pass a similar clause, but it 
was then clothed with plenaiy powers, not restricted as 
the Dominion Parliament now is to legislate upon certain 
subjects, and no analogy therefore is to be drawn, any 
more than from the Impei'ial legislation, from their having 
exercised such a power. Whether it was a matter of 
bankruptcy law or a matter of procedure in the Courts of 
law, that Legislature had equally power to deal with it. 

And that seems to me to be tlie crucial test in this case. 
If it was a mere matter of procedure in the practice of 
tiie Courts of common law, the Dominion Parliament, 
dealing with the question as an original piece of legisla- 
tion, would have no power to enact it, and as a con- 
sequence no power to repeal the section which the Parlia- 
ment of the Province of Canada had thought fit to enact. 
[6ol] If, on the contrary, it is a subject which comes 
properly within a scheme for the realization and distribu- 
tion of an insolvent estate, then the Dominion Parliament 
had power to repeal the section in the former Act, and to 
enact it either in its original shape, or with such modifi- 
cations or amendments as they might think proper. 

I agree with the observations of Mr. Justice Osier as to 
the desirability of embracing in any bankruptcy law, not 









' til 




iiijii; 

iiill: 



1881 
Pekk 

V. 

Shiklos. 
Burton, J. A 



280 



ONTARIO COURT OF APPEAL. 



only a scheme for dividing the debtor's estate, but for 
punishing dishonesty, and think it was a wise provision 
to vest in the same Legislature the power to enact a 
bankruptcy law, and to deal exclusively with the criminal 
law. They thus possess the power to declare certain acts 
to be misdemeanours in addition to the punishin>j[ the 
debtor by withholding his discharge, a power which tluy 
unquestionably have under the general power of dealing 
with bankruptcy. 

The Legislature of the Dominion has, in the Act in 
question, declared certain acts to be misdemeanours, and 
they have drawn a distinction between those cases and 
that we are now considering. In cases of this description, 
they have not made it a misdemeanour, but have contented 
themselves with declaring that if the creditor sues in the 
common law Courts of the Province for such a claim, and 
succeeds in establishing fraud, the creditor shall have an 
additional remedy for the recovery of his debt ; that is to 
say, imprisonment for such a limited term as the Judge 
directs, unless the debt and costs be socmer paid. 

I do not at all question the dictum attributed to the 
Chief Justice of the Supreme Court, in Vfdin v. Langloix 
(1) on the contrary, it has my hearty concuiTonco — that 
nothing contained in sub-sect. 14 of sect. 1)2 of tlie B. N. A. 
Act interferes with or restiiets the right or power of the 
Dominion Parliament to direct the mode of procedure to 
be adopted in tho.sc cases in which that Parliament has 
jurisdiction, and where it is exclusively authorized to deal 
with the subject matter. 

[6o2] The Insolvent Act has provided a machinery for 
carrying out its provisions, and has made this the final 
Court of Appeal by parties aggrieved from the deeision.s 
of the Judges of first instance. 

The Provincial Legislature under the powers confei'red 

(1)3 Can. S. C. R. 1 ; ante vol. 1. j). 1(57. 






ONTARIO COURT OF APPEAL. 



281 



1881 



Pkbk 

V, 

Hhiilds. 



upon them undei- sub-sect. 14 of sect. 92, wide as they 
ajipear to be, could not ot'co^.se make any alteration in 
the constitution of these Courts, or in the procedure 
prescribed in the Insolvent Act; but the Dominion Legis- Burt<m^J.A. 
lature are equally precluded from interfering with the 
procedure in the Courts which are not under their juris- 
diction. 

The plaintiff here is not proving upon the estate or 
taking any proceedings in the Insolvent Court, but is 
filing in one of the Provincial Courts. According to the 
procedure of that Court, he is entitled after recovery of 
jndgmen*^' to imprison the debtor in certain cases, but as 
at presf 'j tidvi.sed, the local Legislature has exclusive 
power to say upon wliat terms and in what cases ho shall 
exercise the right to imprison the debtor. 

I do not see upon what pretence this can be saitl to 
come within the general scope and scheme of a Bankruptcy 
Act. To my mind, it is entirely inconsistent with and 
opposed to the principles of that kind of legislation, the 
aim and object of such a law being to secure the assets of 
the debtor for the general body of creditors. 

On a prosecution i'or any of the matters declared to be 
criminal otfencos under the Act, it would bo coinpetout 
tor the Judge to suspend sentence with a view to the 
restoration by the criminal of the property withdrawn 
from the estate, but the provision in question has no such 
object in view, but attempts to secure to the particular 
ct iditor defrauded an adtlitional remedy, and is foreign to 
the scheme of an insolvent law, and an usurpation by the 
Dominion Legislature of a power to deal with a subject 
exclusively within the jurisdiction of the local authorities. 

But the same reasons which preclude the Dominion 
Parliament from enacting such a clause apply with equal 
force when we consider their right to repeal the section in 
[(158] the Act of the old Parliament of Canada. 1 think 



:i!i 



: 






liii 



■■ ( 



1 1 



282 



ONTARIO COURT OF APPEAL. 



il 



1881 
Peek 

V. 

Shields. 
Burton, J. A. 



that section is still in force, and possibly applies to any 
person, whether an insolvent or not. The proceedings are 
not alleged to be under that Act, but I understood the 
parties to desire our opinion upon the question generally, 
and to consent to any amendment which might be neces- 
sary. 

We have in this view to consider Chief Justice Wilson's 
objection, that although not a crime, still if a penal pro- 
ceeding, the remedy could not be invoked in favour of 
this creditor, because the fraud, if any, was committed 
outside the limits of the Province. 

If this be so, it is rather an alarming state of things, 
but whilst fully conceding the rule enunciated by him 
that one country cannot legislate so as to make that legis- 
lation binding on another country, I fa'il to see its applica- 
tion in the present case. 

It does not, so far as the matter we are discussing is 
concerned, become material to consider where the debt 
was contracted. The alleged fraud does not aftect the 
contract in the sense of making it invalid. When it was 
entered into it wjus uncertain where it would be enforceil 
— but all parties knew that wherever it was enforced the 
laws of that country would regulate the remedy. The 
creditor has to follow the debtor, and must sue him 
generally where he resides, and although the lex locicon- 
tradiis may be referred to for the purpose of expounding 
the contract, the rules of evidence, of [)rescription, and of 
practice, will be those of the country where the remedy is 
being sought. Having to submit to these, which it may 
be are more disadvantageous than those of his own 
country, he is also entitled to such benefits as that law- 
gives him, or as the matter is better stated by Lord 
Teuderden, in be La Vega v. Vianna, (1) : "A person 
suing in this country must take the law as he finds it ; he 



(1) 1 B. & Ad. 284, 288. 



ONTARIO COURT OF APPEAL. 



283 



1881 



Peek 

V. 

Shields. 



cannot, by virtue of any regulation of his own countrj', 
enjoy greater advantages tuan other suitors here, and he 
ought not therefore to be deprived of any superior 
advantage which the law of this country may confer. Burton~J.A.- 
He is to have the same rights which all the subjects of 
this kingdom are entitled to." 

[654] In the Act for the relief of insolvent debtors 
passed b}' the late Parliament of Canada, and which pro- 
vided for the discharge upon certain terms of persons con- 
lined for debt, is to be found a provision of this nature : 

" In case it appear to the Court that the debt for which 
such debtor is confined, was contracted by any manner of 
fraud or breach of trust, or under false pretences, or that 
such debtor wilfully contracted the debt witlxout having 
had at the same time a reasonable assurance of being able 
to pa}' or discharge the same, or that he is confined by 
reason of any judgment in an action for breach of promise 
of marriage, seduction, etc., the Court may order the 
applicant to be recommitted to close custody for any period 
not exceeding twelve months." 

Here no option appears to be reserved to the debtor to 
get rid of the imprisonment by payment of the debt, and 
yet it has never been suggested that if the seduction 
occurred in a foreign country, or the fraud was there 
committed, that tiie Court could not make the order for 
committal. 

I think it is a mere matter of procedure ; the defendant 
is a Canadian subject, not a stranger coming into t)ie 
country and accidentally sued here, although I think that 
circumstance would make no difference — the plaintiff is 
here the stranger seeking his remedy in our Courts, and 
is entitled to the same remedies as the inhabitants of this 
Province. 

I think, therefore, the appeal should be dismissed, with 
costs. 



Mr 
I,--' 






I 1 



_X5 



■BM 



284 



ONTARIO COURT OF APPEAL. 



1881 
Peek 

V. 

Shields. 
Patterson, J. A. 



l\ ■ 



iH: i 



III 



I \ t 



Patterson, J. A.: — 

The plaintiffs sue upon the money counts, and charge 
that the defendants have been guilty of fraud, within the 
meaning of the Insolvent Act of 1875, by purchasing 
from the plaintift's, on credit, the goods for the price of 
which the action is brought, knowing or having probable 
cause for believing themselves to be unable to meet their 
engagements, and concealing that fact from the plaintiflfs 
with the intent to defraud the plaintiffs ; and they aver 
[655] that the term of credit has elapsed, and that defen- 
dants have not paid or caused to be paid the debt so 
incurred. 

Tlie third plea of the defendant Shields alleges that the 
contract, out of which the cause of action arose, was made 
in England and not within the Dominion of Canada. 

It is agreed that these pleadings are to be treated as 
amended by alleging that the defendants were traders and 
British subjects, resident and domiciled in the Dominion 
of Canada, at tlie time of the purchase of the goods, and 
subsequently V)ecame insolvents under the Insolvent Act 
of 1875. 

The memorandum of this agreeiueut does not specify 
which of the added allegations arc supposed to belong to 
the declaration and which to the plea. We may treat 
them all as belonging to the declaration. They are 
intended to complete the facts necessary, under sect. 13G, 
to establish against the defendants the charge of fraud, and 
the liabilitj' to "imprisonment for such time as the Court 
may order, not exceeding two years, unless the debt and 
costs be sooner paid." 

The plea is evidently bad as in no way answering the 
action for the debt, but almost in terms confessing it. It 
is addressed not to the debt, but to the charge of fraud, 
wliich it also admits, raising only the question whether 
such a fraud, coniiuitted in England, can be piinished 



ONTARIO COURT OF APPEAL. 



2«5 



under sect. 136, notwithstanding that it was committed 
by a trader resident and domiciled in Canada, subject to 
the laws of the Dominion, having, after the commission of 
the fraud, been adjudged an insolvent under our statute, 
and who, when he committed the fraud, knew or had 
probable cause for believing himself unable to meet his 
(engagements. 

The plea has apparently been treated as pleaded only 
to the latter part of the declaration, and it ought properly 
to have been so amended as to confine it to that part. 

There are no formal exceptions to the declaration ; but, 
upon the demurrer to the plea the whole question has 
been dealt with, including the power of the Parliament 
of Canada to pass sect. 186 of the Act, and the construc- 
[656] tion of that section as applying only to frauds com- 
mitted within the Dominion, or to frauds wherever com- 
mitted. The questions have in fact been argued as upon 
a case stated, without the more regular method of stating 
a case being adopted. Upon the first of these questions, 
I agree with the opinion arrived at by the majority of the 
Court below, from which I do not understand the Chief 
Justice, who dissented upon the second question, to differ, 
that the law formulated in sect. 136 is the law of this 
Province, although I may reach that conclusion by a some- 
what different route. 

The B. N. A. Act gave to the Parliament of Canada 
legislative jurisdiction over the subject of bankruptcy and 
insolvency, and also over the subject of criminal law. 

It would, beyond question, have been within that juris- 
diction to punish as a crime the fraud described in sect, 
136 ; and if an enactment of that effect had been embodied 
in the Insolvent Act, it would have, in that particular, 
resembled several clauses in the Imperial Bankruptcy Act, 
1861, 24 & 25 Vict. c. 134, as e. g., sect. 205, which made 
forgery of certain documents, &c., felony, and sect. 221, 



1881 
Peek 

V. 

Shields 
Patterson, J. A.- 



■ kM 



> ' .? 



r 


m^ 





II 



^1 




1881 

Pkkk 

1'. 
Shikmis 

.Patterson, J. A. 



2.S6 



ONTARIO COURT OF APPEAL. 



\\ liich made any one of a long list of acts a misdemeanour, 
if done by a bankrupt. 

But I entirely agree with Mr. Justice Osier, in the rea- 
soning by which he shews that sect. I3() is not to be 
regarded as an addition to our criminal law, but as a 
matter of procedure, or a mode of enforcing payment of 
the debt. At the same time I desire not to be understood 
to intimate any doubt of the propriety of regarding it, as 
the Chief Justice did for the' purpose of his judgment in 
the Court below, as a penal proceeding to be enforced by 
or in a civil action. 

1 think we are scarcely at liberty to make the ordinary 
limits or the leading objects of bankruptcy law, the test 
of the binding effect of the law of sect. 136. 

We must remember thajb we had, in the Province of 
Canada, the Insolvent Act of 1864, which was in force 
[•jo7 1 when the confederation of the Provinces took place, 
and that sub -sects. 7 and 8 of sect. 8 of that Act were 
essentially the same as sects. 136 and 137 of the Act of 1875. 

Those very provisions therefore existed, at least in the 
present Provinces of Ontario and Quebec, as part of the 
insolvent law, when the subject was assigned to the juris- 
diction of tlie Parliament of Canada. This would, as it 
strikes me, afford a strong, if not an unanswerable reason 
for holding, in this Province at all events, that the re-enact- 
ment of the law as it stood, or of such parts of it as the 
Parliament thought proper to re-enact, was intra vires. 
But it hardly becomes necessary to decide that question; 
because, if the subject of sect. 136 were outside of the 
subject of insolvency, it would seem to follow that the 
Parliament had no power to repeal that portion of the Act 
of 1864, and that consequently sub-sects. 7 and 8 of sect. 
,8 are still in force. Thus the rule of law formulated by 
sect. 136, whether it derives its force from the Act of 1875, 
.or from that of 1864, must be the law of this Province. 




ONTARIO COURT OF APPKAL. 



287 



eanour, 

;he rea- 
»t to be 
(ut as a 
ment of 
lerstood 
Qg it, as 
ment in 
)rcecl by 

ordinary 
, the test 

evince of 
in force 
ok place, 
^ct were 
t of 1875. 
Lst in the 
trt of the 
ihe juris- 
luld, as it 
ie reason 
e-enact- 
it as the 
\ra vires. 
question ; 
ke of the 
Ithat the 
the Act 
of sect. 
[lated b)- 
1 of 1875, 
'rovince. 



Then as to the question raised by the plea. I have been 
impressed by the force of the reasons given by the Chief 
Justice in the Court below for holding that the proceed- 
ing under sect. 13G is a penal proceeding, and a punish- 
ment for the fraud, even though not in its form a criminal 
proceeding ; and that it can only apply to offences com- 
mitted in this country. I have not, however, been con- 
vinced that we ought on that ground to reverse the judg- 
ment appealed from. It is certain that the Act treats the 
proceeding as a means of enforcing payment of the debt, 
as well as punitive in its character. In this respect also 
sect. 63 agrees with sub-sect. 5 of .sect 9 of the Act of 1864, 
when it refers to debts fraudulently contracted as debts 
"for enforcing the payment of which the imprisonment of 
the debtor is permitted by this Act." Having regard to 
this circumstance, and to the fact that the debtor in this 
case, being domiciled in the Dominion, and in this Pro- 
[658] vince of the Dominion, as I think wo may assume 
from his being sued here for a debt contracted abroad, was 
subject to our laws when he contracted the debt, and knew 
the mode provided by our law for enforcing payment of a 
debt contracted as this one was, I do not see my way to 
holding with sufficient clearness to justify the reversal of 
the judgment of the majority of the Court below, that he 
can escape from the direct efiect of the enactment by rea- 
son of his fraud having been committed out of the Dom- 
inion. 

I therefore agree, though with some hesitation upon the 
last point, that we should dismiss the appeal, with costs. 

Morrison, J. A., concurred with Spraqge, C.J.O. (1). 



1881 

Pkrk 

1'. 

Shiklos 

Patterson, J. A. 



(1) [The judgment of the Court of 
Ap|)eal was affinned in the Supreme 
Court in May, 1883 (8 Can. S. C. R. 
.')79). In giving judgment Ritchie, 
C. J., Hay», at p. 590: "I cannot 



doubt that sects. 136 and 137 of the 
Insolvent Act of 1875 are intra vires 
of the Dominion Parliament. " And 
at p. 591 : "As to this lieing matter 
of civil procedure and ultra vires as 



"tA 




I ( ' '! 



288 



ONTARIO C!OURT OF APPEAL. 



Peek 

V. 

Shieldh 



1883 interfering with i)ro;"erty and civil 

rights, what I have stated in Valin v. 
Langlois(3Ca,n. S. C. R.l ; ante,\o\. 1, 
p. 158), is an answer to this objection. 
The right to direct the procedure in 
Patterson, J. A. civil matters in the provincial courts 
has reference to the procedure in 
matters over which the Provincial 
Le^slature has power to give them 
jurisdiction, and does not in any 
way interfere with or restrict tlie 
right or power of the Dominion 
Parliament to direct the mode of 
procedure to be adopted in cases in 
which the Dominion Parliament has 
jurisdiction, and wiiere it has exclu- 
sive authority to deal with the sub- 
ject matter, as it has with the sub- 
ject of bankruptcy and insolvency. 
This is also the view taken by the 
Privy Council in the case of Cashing 
V. Dupuy (5 App. Cas. 409 ; ante, 
vol. 1, p. 252). I will only add that 
I am quite prepared to adopt the 
conclusion arrived at by the Court 
of Appeal, and to say that such a 
provision as the one in question 
comes fairly within the general scope 
of any law relating to bankruptcy 
or insolvency." 

Strong, J., said, p. 593: "The 
view which I take of this case does 
not make it necessary to decide the 
constitutional question as to the 
power of Parliament to pass such 



an enactment &i that in question, 
limited to the territory of the Do- 
minion, the opinion at which I have 
arrived being formed exclusively on 
the construction of the clause in 
ciuestion. I may say, however, that 
J have heard nothing to raise a 
doubt in my mind as to the consti- 
tutional validity of such an enact- 
ment (provided it is construed, as 
hereafter to be i^tated, as limited to 
the territory of the Dominion) under 
one or other of the powers conferred 
on Parliament by the B. N. A. Act 
of legislation as to criminal law, 
bankruptcy and insolvency, or trade 
and commerce, and even if this view 
is incorrect, and the provision in 
question cannot be considered a pro- 
per exercise of any of these powers 
of legislating, the opinion of Mr. 
Justice Burton must then be correct, 
and the similar clause in the Insol- 
vent Act of 1865 be held to be still 
in force. " 

Fournier, J., said, p. 598: "I be- 
lieve the enactment of 136th clause 
is clearly within the powers of the 
Federal Government, which has un- 
limited power to legislate upon the 
matter of insolvency. " 

Henry, Taschereau and Gvirynne, 
J. J., did not express any opinion on 
the constitutional question.] 



ih ! 



ONTAIUO f:OURT OF APPEAL. 



289 



Jan, JJ ; 
Oct. 0. 



ONTARIO COURT OF APPEAL. 

MoNKHousE V. The Grand Trunk Railway Company. 1883 



\Bep(>rtr(l 8 App. Rvp. (Out.) CSr.] 

Dominion raihnrj—B. N. A. Act, a. 92, .mb-s. 10 — JfJf. V.c. 3S, 0. 

Th'' Province of (Ontario passed an Act to make provision for the 
safety of railway employees and the public, such jirovision 
having reference to the construction and maintenance of rail- 
way frogs, etc. Per Spragge, C.J., a Provincial Legislature 
has no power to pass such a law with reference to a Dominion 
Railway situate locally within the Province. (The other Judgts 
of the Court of Appeal exi;)ressed no opinion upon the point, 
being of o])inion that tlie Act was not intended to apply to 
Dominion Railways, and for that reason ilid not apply to the 
Dominion Railway Co. in (juestion.) 

This was an appeal by the dei'enchint.s from the judg- 
ment pronounced at the trial by Osier, J., dii-ecting a ver- 
dict to be entered for the plaintiff for !i?L400, with costs 
of suit. 

The action was brought by the next friend of the plain- 
tiff, who was a minor, a servant of the company, alleg- 
ing that the plaintiff, 

" Being a railway servant, on, etc., within this Province, 
to wit, etc., personal injury was caused to him whilst in 
the employment of the defendants, a railway company, 
owned and operated by them in this Province, by reason 
of the space between the rails in a railway frog forming 
part of such railway, extending from the point of such 
frog backward to where the heads of such rails are not 
le«s than five inches apart, not being at all times after 

Present .—Upragge, G. J. O., Hauarty, C. J., Q. B. and Burton and 
Patterson, JJ.A, 



nil's 



I}' 



< (Si 

% 




S 


1 










I. ( 



i!: 




•i 






I 

! 
i 


i 




( 

i 
i 



290 



ONTARIO COl'RT OF AIM'KAL. 



w 



! 1 



188H the lapse of three months from the passing of 'The Rail- 

MoN^oisK '■'^^y Accidents Act,' 1881, 44 Viet. c. 22 (O.) and par- 

^ »• ticularly on the date hereinbefore specified, filled in with 

Trink Rail- packing ; and that the default occasioning the personal 
ivAV Company. . . V . „ i-" r 

— injury herembefore stated arose from the negligence of 

ST\TKSfKNT 

— _ the defendants whose servant the plaintiff then was, and 
was not occasioned by the plaintiff's own act, omission or 
negligence." [Claiming $3,000 damages.] 

The defendants, amongst other grounds of defence, set 
up that — 

" They are a corporation created by the Legislature of 
the United Province of- Canada before the passing of the 
B. N. A. Act, and that their railway extends through two 
or more Provinces of the Dominion of Canada, and that 
they are under and subject in all respects and in all 
matters relating to their railway to the jurisdiction and 
authority of the Dominion Legislature, and not to the 
[638] jurisdiction or authority of the Legislature of the 
Province of Ontario, and that the said Act in the state- 
ment of claim mentioned was, as therein mentioned, 
passed by the said Legislature of the Province of Ontario, 
and not the Parliament of the Dominion of Canada, and 
that the Act only purports to apply to every railway and 
railway company, in respect of which the Legislature of 
Ontario has authority to enact such provisions respec- 
tively, and the defendants say that for the reasons above 
stated the Legislature of Ontario has, and had, when said 
Act was passed, no authority to enact such provisions 
respecting the railway of the defendants as in said Act 
contained, and as are mentioned in said statement of 
claim, and the defendants say the said Act does not ami 
was not intended to apply to them or their railway." 

The case came on for trial at the Toronto Winter 
Assizes, 1882, without a jury, when evidence was given 
clearly establishing the fact of the injury sustained by 






! Rail- 

i par- . 

a with ! 

jrsonal 

jnce of 

as, and 

ision or 

nee, set 

ature of 
y of the 
ugh two 
md that 
d in all 
;tion and 
,t to the 
■e of the 
[le state - 
(ntioned, 
Ontario, 
lada, and 
way and 
ilature of 
respec- 
,ns above 
hen said 
Iro visions 
[said Act 
iment of 
not ami 

ay. 
Winter 

as given 

lined by 



ONIAHIO COIMtT OK API'KAL. 



'1\)V 



the ])laintitf", and that he was still unable to work, aii<l 
would continue to be so for some time. 

The learned judge at the conclusion of the evidence 
made the following note or memorandum of his findings : 

"I tind an Act of the Legislature of Ontario by which 
the defendants are directed to pack the frogs, and the 
accident has occurred entirely by reason of the defen- 
ilaiits' wilful disregard of this direction. The defendants 
do not propose to accept my decision as final ; and there- 
fore, although my impression is that the Act in question 
is ultm vires, I shall, for the purposes of the trial, and 
the Judicature Act to the contrary notwithstanding, treat 
the Act as in force. The damages I assess at $1,400 ; 
[(539] and I direct judgment for the plaintitf for that sum, 
with costs of suit, to be entered after the next sittings of 
the Court of Appeal." 

fiethune, Q. C, for the appeal. 

Muloch, contra. 

The grounds of appeal shortly were, that the del'en- 
<lants' company were not subject to the provisions of the 
Act of the Ontario Legislature in question : that the Act 
itself was ultra vires. 

Spra(;ge, C.J.O.: — 

This case lies within a very narrow couipass. The short 
question is, whether the Act of the Legislature of Ontario, 
under which this action is brought, applies to the Grand 
Trunk Railway Co. The ((uestion assumes this shape 
liocause the Act itself, in terms, applies only " to every 
railway and railway company in respect of which the 
Legislature of Ontario has authority to enact such pro- 
visions;" and the inquiry is, whether the Provincial 
Legislature had authority to apply the provision of the 



MdNKHOU.'F. 
TllK (iltANI 

rmiNK Rail- 
way Com I'ANV. 

SrATKMKNT. 



(i 



''ii 



■^4 

■0 









m 



♦!1 



1 ii- 






m 



if 
'iilll 



f 

'■'i 






• i| 



2<)2 



ONTARIO COUHT OF APPEAL. 



I'l 



lA 






i i 



1883 Act un ;er -"-hich the action is brought to the defendants. 
MoNKHouHK The solution of the question lies in the interpretation 

Thk Grand P^'oper to be put upon sections 91 and 92 of the B. N. A. 

Tri'NK Rail- a „i. 
WAY Company. ^''• 

„ — ' , ,, These sections have been so much considered, as well 

Spreifife, C.J.O. ' 

— in the Privy Council as in the Supreme Court and the 
Courts of this and other Provinces of the Dominion, that 
it would be superfluous to examine auy portions of them 
except those which bear directly upon the j>oint in ques- 
tion. It will be convenient, adopting the ])rinciple of 
construction pointed out in Russell v. The Queen, (1) as 
the proper one, to take the tirst (juestion to be determined 
to be, whether the Act, if applied to the defendants' com- 
[640] pany, falls within any of the classes of subjects 
enumerated in sectiori 92, and assigned exclusively to the 
Legislatures of the Provinces. 

It would be a nice question whether it does not fall 
within the subject of " civil rights in the Provinces," it 
the question rested there — if the subject dealt with by 
the Provincial Act be not, if applied to the defendants' 
company, assigned by the B, N. A. Act to the Dominion 
Parliament. 

The tirst part of the Imperial Act to be referred to is 
No. 10, with its exceptions, in section 92. No. 10 assigns 
to the legislation of the Provincial Legislatures, " local 
works and undertakings," other than those of three 
classes which are excepted. The first of these excepted 
classes is, " a. Lines of steam or other ships, railways, 
canals, telegraphs, and other works and undertakings 
connecting the Province with any other or others of the 
Provinces, or extending beyond the limits of the Pro- 
vince." It is indisputable that the Grand Trunk Rail- 
way of Canada falls within this excepted class. 

Turning then to the introductory part of section 91 we 



(1) 7 App. Cas. 829, 836 ; ante vol. 2, p. 12. 



ONTARIO COURT OF AI'PKAL. 



2!)8 



tiiul it enacted that " the exclusive lef^i.slative authnrity l««3 
of the Parliament of Canada extends to all matters coming Monkik.isk 
within the classes of subjects next hereinafter enumerated ; -pug g,{ vnd 
tliiit is to say." Then follows the enumeration of sub- \va'y cosi p \n v. 
jeots twenty-nine in all, and the last of these, No. 29, is siiriKwiTc jo. 
" Such classes oi subjects as are expressly excepted in the 
^numeration of the classes of subjects by this Act assigned 
exclusively to the Lejfislatures cf the Provinces." 

It .nppears to me that the excepted class (a) is l>y 
number 29 of section 91, as distinctly assigned to the ex- 
chisive legislation of the Parliament of Canada, as are 
• tlie re<;ulation of trade and commerce," the "postal 
service" or any other of the classes of subjects enumerated 
in section 91. The only other (piestion, if it admits of 
i|uestion, is whetlier the Provincial Act under which this 
action is brought would be if applied to the defendants' 
company, in contravention of the legislative authority 
[041] assigned to the Parliament of Canada. There is 
no room to contend that the legi.slative authority is con- 
current, for the language of the Act is " exclut^ive legis- 
lative authority." A fair test of the legislative authority 
of the Provinces w^ould be to try it by an Act applied in 
terms to the defendants' company. Take the title to 
this Act and its recital, mutatis mutandis, it would read 
thus: "An Act to make provision for the safety of the 
employees of the Grand Tiunk liaihvay Company of 
Canada and the public." "Whereas, liv»iuent accidents 
to railway servants and others are occasioned by the 
neglect of the Grand Trunk Railway Company to provide 
a lair and reasonable measure of protection against their 
occurrence." Take this, followed by such enactments in 
relation to the Grand Trunk Railway as are contained in 
this Act, it woidd be palpably legislation in relation to a 
matter, in relation to which legislative authority is 
assigned exclusively to the Parliament of Canada. 



Ml' 

B 
III. 



m 






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■fi 111 






y^\i 






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^ 



2f)4 



ONTARIO COritT oh" AIM'KAF.. 



M1 



i«H3 I ayreo in much of tho iiiircuiouH arfjunieiit tiiat lias 

MoNKiioiHK ''ceti lulth'e.sHod to us by Mr. Mulock ; but, as he bases the 

Thf Gu\M' plft'iiititt's case upon provincial li'i^'isl.'ition, and 1 iijtprclicnd 

,'5."J17'''^..l*)!.'v necessarilv so bases it, lie boiny- a st'i'vant of the dcfcii- 



Spratikft', *'.-I.<i. 



4i\\i\\ 



I I 



dants' company, it must, for the reasons tiiat 1 have given 
in my jud<,nnent, fail. 

The appeal should, in my opinion, Iki allowed. Tf the 
learned Judge whosi' Judgment is appealed Irom lia<l 
given a Judgment in accordance with iils in<lividual 
opinion, it would, in my opiiuon, have been proper to 
firtirm it. 

BriiTON, J. A. : — 

I agree in thinkino- that tlie Ontario Act was intended 
to apply to those railways only which, under subsection 
1(1 of section 92, are placed under their juiisdiction, viz.: 
tho.se lying wholly within the Province, and not declared 
by the Parliament of Canada to be for the general advan- 
tage of Canada, or for the advantage of two or more 
of the Provinces. That being so, tlu; point which was 
mainly argued before us does not necessarily arise for 
[(542 1 adjudication, and I abstain from offering any opinion 
tipon it. 

On the .short ground T have mentioned I think tlu^ 
appeal should be allowed, with costs. 

Patterson, J. A. : — 

I have only a few \vf rds to a<ld to what has beeti saitl 
by his Lordship the Chief Justice, because I agree with 
him and the other members of the Court that the appeal 
must be allowed. 

The statute in question, 44 Vict. c. 22, has been spoken 
of as ultra vires of the Ontario Legislatui'e. Whether it 
is so or not depends upon the inter{)retation which is put 
upon it. It professes, in section 2, to apply its provisions 



ONTAUlo ( Ol UT OF AI'l'KAL. 



2!i:) 



to " ovory railway mid railway company in resiuict of ihh;^ 
which till". Lonisiatuic of Ontario has authority to cjiaet \i 



such I tio visions icspcctivcly." 

Heading this literally, no (|Uc,stioii of rlres can ai'isc 
Neither can such a (|Ucstion !»(> loasonahly sugi^estcil if 
the enactment is undcMstood to rehite to those railways 
only to which the letjislativo authority of the Province is 
restricted by the exception containe<l in thc^ 10th ai'ticle 
of section {)2 of the Jl N. A. Act, coupled with the 2f>th 
article of section 91. But if it can be taken to contem- 
plate all railways in the Province, it may well be askiid 
il jurisdiction to pass the Act existed. 

I do not see that the Act can l»(i properly read except 
ill one of two ways : eitlu^r as intended to i^overn all rail- 
ways in the Province, or as confined to those which are 
not covered by the exception in ai-ticle 10. To attempt 
to construe it more literally would, in my Judnfment, be 
to treat it as so uncertain as to destroy its value as a piece 
of ])ractical le<;'islation. Violation of its mandates or 
prohibitions would be punishable by indictment ; and it 
cannot be assumed that the Legislature intended to throw 
upon any company the task and the risk of deciding 
whether it was, or Avas not, aimed at as one with resjtect 
to whicli there was authority to (aiact all or any one of 
the provisions of the Act. There must be some criterion, 
capable of being precisely stated, which the Legislature 
[G43] must be supposed to have had in view. The lan- 
guage employed in the second section shew.s that all rail- 
ways were not aimed at, while the limited class is not 
indicated in any other way than Ity the general reference 
to th(! legislative jurisdiction. I think tlio onlv way to 
give a 2^1'actical construction to this is, to understand it 
as referring to the terms of the B. N. A. Act, and thus as 
intended to afiect only those railways over which the 
Legislature, under the 10th article of section 92, hud ex- 



ONKHOl.SK 

r. 

Thk (Jkand 

Pkink U.ui- 

wayComi'any. 



l':lHl'r«llM, J. A. 






1(1' 



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296 



ONTARIO COURT OF APPEAL. 










i ? 



18''3 c us'"^e jurisdiction, because situated wholly within the 
Mo\KHoi>K Province, and not declared by the Parliament of Canada 
Thr Granii ^o ^^ ^^^ t^6 general advantage of Canada, or for the 
Ja'^vo^u^'^Iv advantage of two or more of the Provinces. 
Pattorsmi^ ,1 \ ^ wish to guard m\'self from being understood to hold 
that a railway company inooiporated under the laws of 
the Dominion, or coming within the exceptions in the 
10th ariicle, may not be affected by provincial legislation 
touching property and civil rights, or other subjects 
within the jurisdiction of the Provincial Legislatures. I 
merely hold that this statute, which relates to the manage- 
ment and in some respects to the construction of railways, 
and deals only with railways as such, applies only to a 
class which does not include the company which is dof<'n- 
dant in this action. 



Hagautv, ('. -T., cc^neurrtd. 



m 



ONTARIO COrivl OF APPEAL 



ONTARIO COURT OF APPEAL. 
DoYLK V. Bell. 

<.hi, appeal Jfom the Court of Common Plean, 

{Reported It App. Hep. (Oid.JSm.] 

Dominion Election Low — Penalties — Propevi]! and Civil Rinhta. 

The jurisdiction of the Provincial Legislatures over "property and 
civil rights" does not preclude the Parliament of Canada from 
giving to au iiifonner the right to recover, by a civil action, a 
penalty imposed as a punishment for bribery at an election. 

The Dominion Elections Act, 1874, by sect. 109, provides that all 
penalties and forfeitures (other than fines in cases of misde- 
meanour) imposed by the Act shall be recoverable, with full costs 
(if suit, by any person who will sue for the same, by action of 
debt or information, in any of Her Majesty's courts in the 
Province in which the cause of action arose, having competent 
jurisdiction : 

//('/'/, that this enactment was valid. 

This was an appeal from a judgment of the Court of 
Common Pleas (1), refusing to disturb a verdict recov- 
ered by the plaintiff in an aoti;/a for penalties under the 
Dominion Elections Act, 1874, i7 Vict. c. 9. 

The statement of clann alleged that the plaintiff was a 
farmer residing in the ownship of Charlotteville, etc., 
and the defendant an hoi el keeper residing in the villafy'^ 
of Port Dover. 

On the 20th day of Jime, 1882, an election was held in 
the electoral district of the South Riding of the County 
of Norfolk, for choosing a member t^ serve in Parliament 
for the said electoral district, pursuant to the statutes in 
that behalf. 



1884* 
December 18. 



* Present :—H.iOARTV, C.J.O., Pattkuson am, Morrison, .TJ.A., and 

ROSK, J. 

(1) 32 U. C. C. P. (532 ; post \ M). 




mm 



21)8 



ONTARIO (JOURT OK APPKAL. 



ill!' 




1W4 

I »<1VI,K 
V. 

Hki.l. 

SrATKMKNT. 



Tlu) (l<'i'endant offered and promised moneys to one 
James Burgess, a person entitled to vote at said election, 
in order to induce him to refrain fVom voting at said 
election, contrary to the Dominion Elections Act, 1874. 

Tlie defendant tliereby became liable to forfeit the sum 
of $200 to the plaintiri" who sues the defendant for the 
same in this action, pursuant to the said statute. 

The stat(;ment of claim also allege<l similar offers and 
promises made by defendant to J. B. Evans, William 
Boughner, and John Payne, persons entitl(Ml to vote at 
such election, etc., an<l claiming the several penalties of 
.^200 thei-efoi-. 

The defemlant, by his statement of defence, denied the 
allegations in the stateuKjnt of claim. 

He further alleged that, from before the commencement 
of the said election, until aftei- the said election was ended, 
and during the Umes within wliich the acts in the state- 
ment of claim referred to are charged to have been done 
by the defendant, the defendant was of unsound mind, to 
such a degree as to be unable to distinguish between right 
and wrong. 

The cause was tried before Burton, J. A., with a jury, 
at Simcoe, at the Fall Assizes of 1882. 

The fin<ling was that the defeiidant hai. ottered or pro- 
misetl numey to two of the persons named in the state- 
ment of" claim, to induce them to ref'i-ain from voting, upon 
which a verdict was entered for the plaintiff, with the 
penalty in each case of ^'2(){) ( 1 ). 

//. J. Scott, Q. C, foi- the appellant. 

Odf'r, Q. C, for the respondtmt. 

Haoartv, C.J.C). : — 

I thiidv this appeal should be dismissed, and the juilg- 

(1 ) Tlif stiitnment hfre given is tiikoii from tlx' lleixpit in tlw Coinnidn Pleas, 

;;'2 i". c. ('. P. ii:iL'. 



OXTAllU) COi liT OF Al'PEAL. 



■2'M) 



iiient of the Coiniuoii Pleiis aliinned, for the rca.sons oixcn ihm 
]»y that Court. Doyi.k 

In the argmnciit liefore us a very wide proposition was bku.. 
advanced as governini>' thi, case, viz: tlnit tlie J)oniinion iii.j{art.v, c.j.o. 
Parliament couh] not pass any Act by whicli an action of 
• iebt, or anything in the nature of a civil proceeding at 
suit of an individual in our Courts for the recovery or 
enforcement of a penalty was created : that "civil rights " 
were exclusively within the jurisdiction of the Local 
Legislatures, and that the creation or enforcement of a 
liability like the present trenched upon that exclusive 
jurisdiction. 

If this be correct, the Dominion Parliament is })ower- 
less to create or enforce any civil liability to penalty or 
to flamages in civil proceedings in Provincial Courts over 
th(^ wide field of their legislation on tlie numerous sub- 
jects entri'sted to their exclusive jui-isdiction, such as 
th(^ regulation of ti-ade and commerce, navigation and 
shipping, banking, customs and exc.'ise, weights and 
mcasui-cs, bills of exchange and notes, bankruptcy an<l 
insolvency, patents, copyright, and many others. 

They cannot enact that there can be any pecuniaiy 
penalty recoverable by one person against another for a 
violation of anything ordered or prohibited, or that an 
action will lie, or damages be recoverable, for infringe- 
ment of a patent or copyright, or that lands can be 
expropriated for public works, or any other right or 
privilege which they have the (ixclusive I'ight to grant or 
confer. 

1 am wholly unpi'epared to assent to any proj)osition 
so startling, or so destructive to the due and necessary 
exercise of the legislative functions of the general govern- 
luent. I cannot see how, in discussing legislative powers 
as to "civil rights," it can be in any way m^ci^ssary to 
ai'-U"' :lnt thi! i-ighl, to enfoidi a penalty at suit of an 



:j.?i« 

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800 



ONTARIO COURT OF APPEAL. 



1884 

DOVLE 
V. 

Bkll. 

Ilagarty, C.J.O, 



!l= 



I ! 



f|i| 



ii; 



individual, touches the adinittodly exclusive rii^ht of our 
Legislature over " property and civil rights in the Pro- 
vince," 

It can hardly be said that it is a civil right in the de- 
fendant to commit bribery, but it is argued that a civil 
right is involved in making him liable therefor to pay 
money to another person in a civil action. I think this is 
a strained and unnatural construction. 

It was urged by Mr. Scott in his very able argument 
that grant! '^ the right of Parliament to make all neces- 
sary provisiu-^? '/> enforce purity of electicn, they could 
have fully eftbcl ^ such purpose by their undoubted right 
to enforce it by liie Criminal Law, that they might 
legally effect the same object by information at suit of 
the Attorney-General, and thpvpfnvo theic was no reason 
for their conferring the right to sue on an individual. 

T think their right to do as they have done here cannot 
be measured by our view of the necessity of such a pro 
ceeding. Such a power existed at and before confedera- 
tion. I do not believe there is anything in the Confedera- 
tion Act limiting their power on such a subject. 

I am also of opinion that, granted the existence of the 
power to impose the penalty, it can be properly rt cover- 
able in our Courts. 

Nor do I see any encroachment on the subject of civil 
procedure. An action of debt for a penalty seems still 
to be brought in our Courts under local statutes. We 
had one before us within the last two months, and such 
actions are so described in our local election law (1). 

It is unnecessary to discuss the right of our Legislature 
to alter or prescribe a new form or course of procedure 
in our Courts for the recovery of r)enalties. 

The general subject of the right of Parliament to deal 
with subjects specially allotted to them by the Federa- 



(1) darrrtt v. /?o/;cr«s, 10 App. Re]!. (!G0. 



ONTARIO COURT OF APPEAL. 



HOI 



tion Act, and to enforce their enactments by civil as well IS84 
as criminal proceedings in the Provincial Courts, is very Doyle 
fully discussed in Valln v. Langlois (1). v,K\.h. 

I think the appeal must be dismissed. nasjaity, c.j.o. 

Patterson, J. A.: — 

Tlie Dominion Elections Act, 1874, by sect. 92, declares 
that any person offending against the pi-ovisions in 
that section made against bribery shall be guilty of a 
misdemeanour, and shall also be liable to forfeit the sum 
of $200 to any person who shall sue for the same, with 
full costs of suit. Sect. 109 provides that all penalties 
and forfeitures (other than fines in cases of misdemeanoiu") 
imposed by the Act shall be recoverable, with full costs 
of suit, by any person who will sue for the same, by action 
of debt or information, in any of Her Majesty's courts in 
the Province in which the cause of action arose, having 
competent jurisdiction; and, in default of payment of the 
amount which the offender is condemned to pay, within 
the period fixed by the court, the offender .shall be im- 
prisoned in the common laol of the place for any teim 
less than two years, unless such fine and costs be sooner 
paid. Then sect. 110 contains some rules of pleading or 
procedure " in any action or suit given by this Act." 
Sect. Ill declares that "in any such civil action, suit or 
proceeding as last aforesaid, the parties to the same, and 
the husbands or wives of such parties respectively, shall 
be competent and compellable to give evidence to the 
same extent, and subject to the same exceptions, as in 
other civil suits in the same Province ; but such evidence 
shall not thereafter be used in any indictment or criminal 
proceeding under this Act against the party or person 
giving it"; and sects. 114, 115 and 116 contain furthir 

(I) 3 Can. S. C. H. 1 ; 5 App. Cas. 11.') ; ante vol. 1, p. 1.58. 



■'11 II 



-as 



11 







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ONTAHIO ( ol ]t'f <»F Al'l'KAL, 



1884 

Doyle 

I'. 
Bkm.. 

Patterson, ,1.A. 



ii 



mm^ 



1 1 ■ I 



! i 



hii 



jMovisions on the subject of pleadiiiL"" and evicleiicf in 
these actions. 

This action is hrouuht to recover several sums of i^iOU 
each, for its many oti'ences alleged to have been committed 
by the defendant against the provisions of sect. 92. The 
plaintiff recovered a verdict and judgment for two penal- 
ties of $200 each, with full costs of suit. 

This appeal is from the refusal of the Court of Common 
Pleas to disturb the verdict or the judgment. 

The only question which has been argued before us is 
the very important one of the legislative jurisdiction of 
the Parliament of Canada. 

The ' > (.ention on the part of the defendant is that, in 
giving an action to an informer to recover the penalty in 
a civil '^"tiory '•^P! Parliament has overstepped the juris- 
diction confer i-eti upon it by the B. N. A. Act. 

One argument in support of this contention was based 
upon the existence, in sect. 109 and the sections following 
it to which I have alluded, of provisions touching pro- 
cedure and evidence in civil actions. It was urged that 
this was a clear violation of the division No. 14 of sect. 
92 of the B. N. A. Act, which places amongst the classes 
of subjects, in relation to which the Provincial Legislature 
is given exclusive power to make laws, procedure in civil 
matters in the Provincial Courts. 

This position struck me as being a formidable one, and 
I still think so. The action to recover a penalty by an 
informer is clearly a civil action, and not a criminal pro- 
ceeding. That was solemnly decided more than a century 
ago in Atcheson v. EreriU{\), which was an action of the 
character of the present action, to recover a penalty for 
bribery, under 2 Geo. II. c. 24, s. 7; and this quality of 
the action is expressly recognised in the words which I 
have just read from sect. 111. 



(1)1 Cowp. 382. 



ONTARIO COURT OF APPEAL 



m:^ 



But when we look attentively at the proceedin;4s before 
us, it is apparent that the objection founded on sect. lO?) 
and the later sections does not properly arise for decision. 
The plaintiff's statement of complaint does not contain 
the allegations authorized by sect. 110, "that the defendant 
is indebted to him," etc.; the action does not purport to 
be an " action of debt or information"; and I gather from 
the judgment of the learned Judge who tried the action (1) 
that he did not act upon the evidence which sect, 115 
assumes to make sufficient, but required and received 
other evidence of the writ and return. I notice also that 
he gave judgment only for the amount of the verdict and 
costs, without imposing any term of imprisonment under 
sect. 109. 

There is nothing before us, either in the form of the 
action, or the conduct of it, or the judgment, which 
requires support from anything beyond what is found in 
sect. 92. That section declares the offender liable to for- 
feit the sum of $200 to any person who shall sue for the 
same, with full costs of suit ; and the plaintiff states his 
cause of action in those terms, and asks for nothing more 
than that section entitles him to ask. 

The technical aspect of the (question, which we thus get 
rid of, may hereafter require consideration in some action 
for penalties which are not given to the infoi'mer except 
by force of sect. 109 ; such, e. </., as those imposed by 
sects. 47, 72, 84, and 91, and perhaps others. At present 
we have to deal with the broader inquirj- whether the 
jurisdiction of the Provincial Legislature over "propeity 
and civil rights in the Province," assigned to it by division 
No. 13 of sect. 92 of the B. N. A. Act, excludes the power 
of the Parliament of Canada to give the right to an in- 
former to recover, by a civil action, a penalty imi)()sed as 
a punishment for bribery at an election. 



18K4 
Dovr.K 

V. 

Rei,(.. 

I'iitrernon, .l,A. 



(1) 32 U.C.C.P, p. 633 ; po^t p. 313. 



1 



1884 
Doyle 

V. 

Bell. 
Patterson, .I.A. 



304 



ONTARIO COURT OF APPKAL. 



M iv 



I do not tliink this subject has been so directl}'' touclied 
by any of the decisions upon the B. N. A. Act as to relieve 
us from the duty of considering it on principle. 

A.ny argument founded upon the inevitable interference 
with property and civil rights by the parliament, in the 
exercise of its exclusive legislative authority over the 
large class of subjects enumerated in sect. 91, seems to 
me entirely beside the present discussion ; and, without 
venturing an opinion as to how far civil rights, created by 
Dominion legislation, ought to be left for their enforce- 
ment to the remedies and procedure provided by the Pro- 
vincial Courts under Provincial laws, or how far such 
remedies and procedure may be prescribed by parliament, 
I think the fullest power in connection with such matters 
might be conceded to the parliament, without necessarily 
involving the right to give a civil action to a private 
individual as a mode of punishing an offence. 

The two subjects have, to my apprehension, no analogy. 

We are indebted to Mr. Scott for the citation of all the 
cases in which questions under the B. N. A. Act, at all 
resembling those now raised, have been discussed. 

One important decision which is relied on for the 
plaintiff is Valin v. Langlois (1). We have a series of 
able and exhaustive judgments delivered by the Judges 
of the Supreme Court, to which it would be instructive 
to refer ; but I prefer to confine my attention to that of 
the Judicial Committee, delivered by Lord Selborne, not 
because it adds materially to the others, but because the 
matter is presented in one judgment only. The subject of 
the decision was the power of the Parliament of Canada to 
commit the trial of election petitions to Provincial Courts. 
That power was affirmed on distinct grounds which I 
need not stay to notice. The decision did not involve any 
question similar to that now raised. The question was 

(1 ) 3 Can. S. C. R. 1 ; 6 App. Gas. 115 ; ante, vol. 1, p. 158. 



ONTARIO COURT OF APPEAL. 



.SOo 



the jurisdiction to deal in the mode adopted with the 
general subject of the trial of controverted elections. 
Part of the reasoning of the Lord Chancellor was founded 
on the 4tst section of the B. N. A. Act, which declared 
that until the Parliament of Canada should otherwise 
provide, all laws in force in the several provinces at the 
union, relative to certain specified matters, should respec- 
tively apply to elections of members to serve in the 
House of Commons for the same several provinces. If 
this reasoning bears at all on the present controversy, it 
is capable of being appealed to by the defendant, because 
the matters specified do not include the punishment ol 
corrupt practices; and Mr. Scott did so use sect. 41 in his 
argument before us. On the whole, I do not regard the 
case of V'alin v. Langlois (1), as very directly aiding us 
at present. 

I think the same observation may be made with respect 
to the other decisions upon the Act, without stopping to 
particularize them, with the exception ot Hodge v. The 
Queen (2). The principles laid down in that case respect- 
ing the construction of the power given the Provincial 
Legislatures, by No. 15 of sect. 92, to impose punishment 
by fine, penalty, or imprisonment, for enforcing any law 
of the province made in relation to any matter coming 
within any of the classes of subjects enumerated in that 
section, are, in my opinion, applicable in the present case. 

" Under these very general terms, ' the imposition of 
punishment by imprisonment for enforcing any law,' " it 
was said by Sir Barnes Peacock, " it seems to their Lord- 
ships that there is imported an authoritj' to add to the 
confinement or restraint in prison that which is gener- 
ally incident to it ' hard labour ;' in other words, that 
'imprisonment' there means restraint by confinement in 

(1) 3 Can. S. C. R. 1 ; 5 App. Cas. 115; <inte, vol. 1, p. 158. 

(2) y App. Gas. 117 ; ante, p. 144. 
20 



1HM4 



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800 



ONTAKIO COURT OF \PPKAL. 



'if«i 



1884 

DOTLR 

V. 

Bkll. 

I'attcrBon, J. A. 



!!i|!!i| 



11 



I I 



li 



I Hh 



a prison with or without its usual accompaniment, 'hard 
labour.'" 

The prevention of corrupt practices at elections is a 
necessary incident of the power to rej^ulate the mode of 
election of Members of Parliament. The legislative 
Jurisdiction of the Dominion Parliament with respect to 
election of members of that body is beyond dispute. One 
exercise of that jurisdiction was the subject of the con- 
test in Vidln v. Lanrjloia (1). The forfeiture of money 
to be sued for and recovered by an informer, with full 
costs of suit, as a punishment for bribery at elections, 
has, ever since the passing of 2 Geo. II. c. 24, more than 
150 years ago, been part of the system of legislation on 
this subject in England. It was so in this Province 
before confederation, and, as far as we are informed, was 
80 in the other confederated Piovinces. 

We have in these considerations abundant reason foi- 
regarding the provision as a recognised if not an abso- 
lutely necessary incident of the authority to deal with 
the subject of elections, and one which can reasonably be 
assumed to have been in the contemplation of tlie 
Imperial Legislature as accompanying the right given, 
whether by express teiins or by necessary implication, to 
the several Provinces and to the Dominion respectively, 
to regulate the election of members of their respective 
legislatures. 

Mr. Scott urged with force and with truth that penal- 
ties of this class, inasmuch as they ditt'er from ordinary 
punishment for crimes by being placed beyond the con- 
trol of the Crown and removed out of the reach of the 
leniency which, in proper cases, is extended to persons 
who may have broken some law, are of a different class 
from those of the criminal law, which is specially assigned 
to the Dominion Legislature. This consideration would 

(1) 5 App. Cas. 115 ; ante vol. 1, p. 158. 



III! 



' hard 

IS is a 
aocle of 
islative 
ipect to 
B. One 
le con- 
money 
ith full 
.ections, 
re than 
tion on 
!*rovince 
led, was 

sason for 
n abso- 
al with 
lably be 
of tlie 
given, 
ition, to 
actively, 
spective 

penal- 
Irdinary 
[he con- 
of the 
Ipersons 
it class 
[ssigned 
would 



ONTARIO COURT OF APPEAL. 



807 



18»<4 



1 )OV LE 

V. 

Bell. 



have weight it" it were necessary, in order to support the 
jurisdiction, to treat the punishment in question as an 
ordinary punishment for crime. But when the power 
to award the puni.shment is found, not in the jurisdiction i^,ttti^,j.A. 
over crimes as such, but in the authority to legislate 
concerning the conduct of elections, the argument loses 
its force. The question becomes one of policy rather than 
of legislative jurisdiction. 

But after all it may be questionable whether the crea- 
tion of this right of action is properly to be regarded as 
an interference with property or civil rights in the pro- 
vince. 

I do not propose to enter upon a discussion of the 
meiuiing or extent of those words as used in sect. 92. 
For our present purpose it is unnecessary to do so. 

We have now the assistance of several decisions of the 
Privy Council, in which the duty is enforced of reading 
the B. N. A. Act, and particularly these sects. 91 and' 92, 
as embodying a scheme of general legislation, and not to 
be construed in a narrow sense or without reading one 
part of the Act or the section with another. Amongst 
these decisions are : L' Union St. Jacques de Montreal v. 
Belide (1) ; Dow v. Black (2) ; Citizens Ins. Co. v. Parsons 
(3); Russell v. The Qtteen (4) ; Valin v. Langlois ("j) ; 
Hodge v. The Queen (6). 

The principle of these decisions requires us to be 
cautious before ti-eating as an encroachment upon the 
legislative jurisdiction over property and civi) i^-hts, 
every enactment by which a right or a liability cogniz- 
able in a civil court is created. 



(1) L. R. 6 P. C. 31 ; arUe vol. 1, (4) 7 App. Cas. 829; ante vol. 2, 
p. 63. p. 12. 

(2) L. R. 6 P. C. 272; ante vol. 1, (5) 5 App. Cas. 115; ante vol. 1, 
p. 95. p. 158. 

(3) 7 App. Cas. 96 ; ante vol. 1, (6) 9 App. Cas. 117 ; ante p. 144. 
p. 265, 





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808 



ONTARIO COTTKT OF APPKAl.. 



18H4 
-/— • 

l>OTr,K 

r. 
PnttorHOii, ,)./.. 






I agree that it is proper to dismiss the appeal, with 
costs. 

MoRUisON, J. A., concurred. 

Rose, J. : — 

It clearly appeainng from the decisions in . ^^.tiv v. 
Lancflois (1) and Penl' v. Shields (2), and cases therein 
referred to, that, as to subjects within the exclusive juris- 
diction of the Dominion Parliament, such Parliament has 
the power to make such enactments as are necessary, 
whether the same interfere with civil rights or not, and 
also the power to provide all necessary procedure to be 
adopted to enforce such rights; and it further appearing 
that Local Legislatures have the right to prescribe pro- 
C(?dure in civil matters only in respect of such matters as, 
by the B. N. A. Act, were placed under the ey^lusive 
control of the Local Legislatures, Mr, Scott was *' n to 
argue that the clause providing for recovery of a , j,lty, 
as sued for in this action, was not the exercise of a 
necessary power, and hence ultra vi/res the Dominion 
Parliament. 

I do not understand by the use of the word necessary, 
as found in various decisions and text books, that it is 
meant to lay down the doctrine that, to bring within the 
powers of the Dominion Legislature any provision of an 
enactment respecting a subject within the exclusive juris- 
diction of such Legislature, and which provision might 
affect civil rights, it must necessarily appear that, without 
such provision, it would be ivipossible to carry into effect 
the intentions of the Legislature, or that probably no 
other provision would be adequate. On the contrary, it 
seems to me that if such provision might, under certain 
circumstances, be beneficial and assist to more fully en- 



(1) 3 Can. S. C, R. 1 ; ante, vol. 1, p. 158. (2) 8 Can. S. C. R. 579 ; ante, p. 266. 



.11 



OXTARfO COURT OF APl'KAL 



809 



torc<> such legislation, ilit'ii it inunt, at all events, on aa 
appeal to the courts, be hold to be necessary in certain 
event.s. Surely the Legislature must be allowed some, 
and in my opinion a very wide, discretion as to the mode 
of enfonnng its own enactments. It cannot bo that the 
courts are to sit in jiidgment on the exercise of such 
discretion, so as to be abh; to dictate to the Legislature 
wh(;ther they sliall adopt this or that mode, because in 
the opinion of the courts our mode is the more convenient 
or better, or at least as well adapted to effect the pui'pose 
of the Legislature. 

It was not contended before us that the provision in 
c|U(.'.stion might not be beneficial. It was contended, 
however, tlnit criminal proceedings might accomi)lish the 
same purpose, 

When it appeared that a similar provision is to be found 
in the legislation on this subject ])rior to confederation, 
also in the legislation on the same subject in other Pro- 
vinces and in Great Britain, it seemed to me the argument 
as to want of necessity failed. The evidence to the con- 
trary is too clear and strong to enable the court to intei"- 
fere. I certairdy cannot take upon myself to declare 
unnecessary what so many Legislatures have declared 
necessary. 

I agree that the appeal nmst be dismissed. 



DoTLlv 

KoH.. .). 



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.It'DOMENT OF THE CoURT OF CoMMON PlEAS. 

[Repovtedd2 U. C. C. P. 63S.] 
Wilson, C. J. — 

[637] There was a plea that the defendant was so intoxicated he 
did not know what he was about at the time and on the occasions as 
charged by the plaintifF. The motion was directed against tlie 
evidence, etc., in so far as they related to tlie trial of that issue. 



:!'ii 



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310 



ONTARIO COURT OF APPEAL. 



DOTLE 
V, 

Bell. 



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1882 Tho Court intimated their opinion that upon the evidence they 

could not properly interfere with the verdict upon any of the 
grounds stated in the motion, and it was not much relied upon. 

The constitutional objections taken are, as I understand them, 
C. P., Ontario, that the Dominion Parliament had not, and has not, the power to 
Wilson, C.J. alter the provisions of the 23 Vict. c. 17, s. 1, repealing the Con. 

Stat. C. c. 6, s. 83, and that the 37 Vict. c. fl, a. f)2, D., so far as it 

does alter them is void ; and that objection I understand to be based 
upon the Confoderaticjn Act, sect. 41, which, it is said, rtstricts the 
interference of the Dominion Parliament in all matters concerninc: 
their own elections to such particular subjects as are mentioned in 
that section. 

The enactment in the Act ot'lSGO is exactly the same as the enact- 
ment of sect. i)2 of the Act of 1874. By the Con. Stat. C. c. H, s. 
83, the jieiialty is declared to be nut less than $20 nor more than 
$200 in the discretion of the Court. The penalty is, therefore, 
difierent from that contained in the Act of 1860, and so also is the 
penalty, which between the limits befoi e mentioned was placed in 
the discretion of the Court. 

The Act of 1860 and such provisions of the Con. Stat. C. c. 6 
that had not been varied by the Aot of 1860, contained the law 
[638] which was in force respecting such election matters at the 
time of confedei'atiun, audamongtho.se provisions not altered by the 
Act of 1860 were the amount of penalty before stated, and the 
amount of it between the limits last mentioned being placed in the 
discretion of the Court. 

As to these two points of diflerence, then, between the Consoli- 
dated Act and the Act of 1874, why could the law not be altered by 
the Act of 1874 ? 

Tt is said because the Confederation Act, sect. 41, does not 
mention these j)articular matters, and the Dominiijn Parliament 
< cannot go beyond the matters e.\];res8e(l in that section. 

The section enacts that " Until the Parliament of Canada other- 
Avise provides, all laws in force in the several Provinces at the union 
relative to tlie following matters, or any of them, namely . . 
shall respectively apply to elections of members to serve in tiie 
House of Commons for the same several Provinces." 

Such an enactment cannot possibly be read as limiting the 
legislation of the Dominion Parliament to the particular matters 
enumerated in it. It is as plain as language can make it that these 
enumerated matters were to remain in force until the Parliament of 



I 



ONTARIO COURT OF APPEAL. 



311 



1882 

DOYLK 
V. 

Bkll. 



Canada otherwise provided. It does not say tliat the Dominion 
Parliament shall not have power to legislate on any other matters 
relating to elections than those which were to remain in force only 
for a temporary purpose. 

The argument that the Dominion Parliament had not the power to C. P., Ontario, 
pass the Election Act of 1874 is one of the extremest instances of Wilson, C.J. 
the attempt to apply the doctrine of ultra vires and unconstitution- 
ality. 

The other objection is that sect 109 of the Act of 1874 directs that 
penalties imposed by it should be recovered by a civil action — by 
action of debt or information ; and it is contended the Dominion 
Parliament had no jjower to give such a remedy, because matte*rs of 
civil procedure are by sect. 92, No. 14, of the Confederation Act 
vested exclusively in the Provincial Legislatures. The Nkujara 
Election Case (1) disposed of that objection 

I did not (juite umlerstand whether Mr. Bethune argued [G39] 
that the Dominion Parliament could give no civil remedy whatever, 
or that it could not prescribe the form of that civil remedy. 

There can be no objection to the Parliament imposing a penalty 
for a particular infraction of the election law without saying by 
what means it shall be recovered, and in such a case a civil action 
will lie for it, under the former law by an action of debt, and under 
the present law by the ordinary remedy for the recovery of money. 
So in dealing with assaults, what objection can there be to the 
Dominion Parliament providing that, in certain specified cases, the 
remedy shall not be bj' criminal pi'ocednre, but by a civil action for 
damages. Such enactments would not be an assumption of legis- 
lation beyond the power of the Dominion Parliament. They would 
not be an interference with the civil procedure in the 'Provincial 
Courts.'' They would be an express submission to the jurisdiction 
of such Courts. 

If, in addition, in the last case of the supposed assault, the Parlia- 
ment enacted that, in respect of it, the complainant might adojit 
the civil remedy ot trespass, it wf)uld not in my opinion be an 
encroachment upon the civil procedure in the Provincial Ck-urts. 

The enactment in (juestion provides that the remedy in such a 
case as the prebor.t sh.".l! be by action of debt or information. 

As I have said, 1 did not understand whether it was that the Act 
of 1874 had appointed the particular form of remedy by action of 



ii 



■m 



.M 







(1) 29 U. C. C. P. 261. 



III 



812 



ONTARIO COURT OF APPEAL. 



DOY LK 

I'. 

Bei.1.. 



debt or information, or because a civil reinf^dy in any form had 

been given, which formed the ground of objection. In the latter 

case, we sec no kind of objection in such legislation, and in the 

former, when the particular kind of remedy is named, we think the 

C. P., Ontiuio. objection is in no way strengthened. The action of debt or pro- 

Wilnoii, r.J. ceeclings by way of information were well known civil remedies in 

~ our Courts at the time the Act was passed, and we see no objection, 

as the Provincial Legislature has altered the form of proceeding in 

[G40] all civil actions but in a few excepted cases— and this kind of 

remedy is not within the exceptions — that the plaintiff may adopt 

the new form of action in place of the former one. 

This last objection was not taken on the argument, J any effect 
could be given to it, and we do not think there could be. 

The Act of 1874, sect. 110, declares it shall be sufficient for the 
plaintiff to state in his declaration that the defendant is indebted to 
the plaintiff in the sum demanded, and to allege the particular 
offence for wliicli the action is brought, and that the defendant has 
acted contrary to the statute. 

The plaintiff has expressly stated the last two particulai-s, but not 
express' y the (me that the defendant is indebted to him in the sum 
demanded, unless that is sufficiently done by the allegation " where- 
by the defendant became entitled to recover the sum of $200" in 
each of the paragraphs of claim, and 1 think that may be held to b' 
a sufficient averment of indebtedness. If it be not, an amendment 
in that respect will, of course, be allowed. 

The second constitutional objection to the recovery in this action, 
we think, fails also. 

The learned Judge who tried the action has not, under the Act 
of 1874, f cot. 100, fixed the period within which the offender is to 
pay the amount he has been condemned to pay, nor has he fixed 
the period of imprisonment the offender is to suffer in tho common 
gaol in case of non-payment of the amount he has been condemned 
to pay, unless such tine and costs be sooner paid. That must, of 
course, be d(me. 

Wo discharge the motion, with costs. 

(iALT and OsLKK, JJ., concurred. 




ONTARIO OOUUT OK AI'FKA],. 

Judgment ok Burton, J. A., at thk Trial. 
[RtpoHed 32 U. 0. C. P. (i33.] 



•MS 



1882 



DOYI.K 
V, 

Bell. 



BuKTON, J. A. : — 

[633] The point was taken that tlie Dominion Legishiture had no Burton, -l.A. 
power to define what should be evidence, but it was urged that, 
apart from the statute, evidence was receivable of the fact of the 
election beijig held, and I gave permission to supply whatever might 
be necess.iry ; and, since the trial, what purjjorts to be a copy of 
the writ and the returning ofhcer's return have been put in. 

The point was further taken, but was not aigued, that the 
Dominion Legislature, so far as it professed to yive a right of suit 
to iin informer to sue for a penalty by action of debt, was ultra I'ires. 

I should not, under any circumstances, even if I had been aided 
by argument, have assumed to decide the point when sitting at 
itisi prhis; but I cannot avoid expressing the opinion that the ques- 
tion is sufKciently d'oubtful to warrant action on the [lart of the 
Provincial Legislature in aid of that of the Dominion, for it is 
certainly desirable that this very salutary check upon corrupt prac- 
tices should be pi-eserved. 

I do not for a moment doubt the power of the Dominion Parlia- 
ment to direct the mode of procedure to be adopted in election 
[034] cases over which that Parliament has jurisdiction, and with 
which it is exclusively authorized and empowered to deal ; and it 
would have the right, therefore, to interfere with property and civil 
rights in so far as such interference might be necessary for the pur- 
pose of legislating generally, and efl'ectually on these subjects. 
Tlie liglit to deal with the Dominion elections being vested in it by 
sect. 41 of the B. N. A. Act, and the criminal law being also vested 
in it, that Parliament has clearly the power to regulate tlie mode of 
elections, and tiie trial of controverted elections, and to make cor- 
rupt practices misdemeanours. This last power is, however, derived 
from their having c nitrol over the criminal law. Were it other- 
wise, if, for instance, the criminal law was vested exclusively in the 
Provinces, their powers would be confined to the regulation of 
elections, and the trial of controverted elections and the proceedings 
incidental tliereto. 

Tlie granting the privilege to any one to sue for a debt is, as it 
appears to me, purely a civil right, not necessarily incident to elec- 
tion procee<lings any more than the right to make a corrupt practice 
a misdemeanour would be. 



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814 



ONTARIO COURT OF APPEAL. 



DOTLK 
V. 

Bull. 



1882 It may be well, also, to note in this connection that the list 

section, which continues existing laws until altered by the Dominion, 
enumerates the matters which the Dominion Legislature may alter, 
but makes no reference to those clauses relating to actions for 
Burton, J. A. penalties. If, however, the Dominion Parliament has no power to 
legislate on such a subject, neither had it power to repeal the exist- 
ing laws, and. although that point was not presented, it is quite 
possible that the action is maintainable under the statutes in force 
at the time of confederation. 

I give judgmer for the plaintift' for the amount recovered, and 
full costs. 



» 



ONTARIO HIGH COURT OF JUSTICE— CH. D. 



315 



■ *'' I! 



[CHANCERY DIVISION.] 
Re Wetherell and Jones. 

[Reported 4 Ontano Reports 71J.] 

Trtkimj enidence to he. iiseil hhfurf'ujn trihinah — B. N. A. AH s. 92, 
snh-sH. 13, 14, 10—31 Vkt. r. 76 {D.) 

The taking of evidence to be used in an action pendnig in a foreign 
tribunal is of extra Provincial pertinence, and does not fall 
within the exclusive legislative authority of the Provinces ; the 
Dominion Act 31 Vict. c. 76 providing for the taking of 
such evidence by Provincial Coui-ts was therefore held to be 
valid (1). 

In this case the plaintiff' obtained an order from Proud- 
foot, J., under 31 Vict. c. 70, (D) for the examination of 
certain witnesses resident in Ontario, under a commission 
and letters rogatoiy from the Circuit Court of Cook 
County, Illinois. 

On September 7th, 1883, the witnesses moved before 
the learned Judge to rescind his order, taking the ground 
that the Act in (juestion, which was his only authority 
for making such an order, was ultra vires. The leai'ned 
Judge refused the order asked, and the matter then came 
up by wiiy of appeal to the Divisional Coui't on Sep- 
tember 12th, 1883. 

Wallace Neshitt for the appellants. The Act in question 
comes within sect. 92, sub-sects. 13 and 14 of the B. N. A. 
Act, under which civil rights in the Province and the 
constitution of the Courts are assigned exclusively to the 
Local Legislature. Before this Act the Courts had no 
power to make such an order: See United States v. 



1888 

Sept. 15. 



m 



if 



fj 



I 







(1) [See Ex parte Smitk 16 L. C. Jurist 140; ante vol. 2, p. 330.] 




1H«3 

Kf. 

Wethekkij. 

AND 
JONtS. 

AB<niMKNT. 



i'!i 



816 



ONTARIO HIGH COURT OF JITSTICK- f'H. D. 



Denison (1). If it is now within their power by thisi 
Act, it is an enlarging of the power of the (Jourt, which 
can only be done by the Local Legislature. The whole 
authorities turn upon the single point that the Dominion 
Parliament can delegate duties to the Judges of our 
Courts, or create new subject matter for oui" Court." to 
deal with, providing sueh duties or subject are not assigned 
[714] exclusively to the Local Legislature. This Act 
assumes to grant to the Court a right not before existent 
in it as a Court. It is a dealing with the constitution of 
the Courts, which is a matter solely for the Local Legis- 
lature. Reference was made to Cartwright's Cases under 
the B. N. A. Act, vol. 1, pp. 171, 191, 19:^ 197 203, 207, 
209, 212, 213, 218, 230, 257, .-)10, .515, 519. 520, 542, ()86- 
735; and Taylor on Evidence, 7th ed., p. 1101. 

G. H. Watsov, contra. The matter is one of inter- 
national courtesy and comity, and is within the power 
of the Court. Valii} v. Langlois (2), and Re Niagara 
Election Case, Plumb v. Hughes (3) were referred to. 



\'v 



m 



litlr 



Boyd, C. :— 

Section 92, sub-sect. 14, of the B. N. A. Act, relates to 
" the Administiation of Justice in the Province," as to 
which exclusive jurisdiction is vested in the Provincial 
Legislature. The controlling words of that sub-section 
are those I have quoted from the beginning of the clause, 
/. e. " the Administration of Justice in the Province." 
These are general words which embi'ace the particulars 
afterwards specified in the sub-section, which thus pro- 
ceeds " including the constitution, maintenance, and organ- 
ization of Provincial Courts, both of civil and of criminal 
jnr'sdiction, and including procedure in civil matters in 
those Courts." Under the general term of Administra- 



(1) 2 Ch. Ch. (Ont.) 170. (2) 3 Can. S. C. R. 1 ; ante vol. 1, p. 167. 

(3) 29 U. C. 0. P. 261. 



ONTARIO HIGH COURT OF JUSTICE-CH. D. 



817 



.in 



tion of Justice is embraced the constitution, etc., of 
Courts, and procedure in the Courts. Thus in the Con- 
solidated Statutes of Upper Canada, under the title 
'' Administration of Justice," we tind as sub-division 2 
" Courts," and as chapter 22 of that sub-division " Com- 
mon Law procedure." The scope of sub-section 14 is 
further manifested by sub-sections 13 and 16, the former 
relating to property and civil rights in the Province, and 
the latter to all matters of a merely local or private 
nature in the Province. This legislation has reference to 
intra-provincial matters ; such, namely, as are therein 
[715] particularized. But I do not think that the language 
is intended to include the matters legislated on in 31 
Vict. c. 76 (D.) That Statute is to provide, as a matter 
of international courtesy, for the taking of evidence of 
persons living within the Province which is needed by 
foreign tribunals in suits being litigated out of the Pro- 
vince. Such legislation does not pertain to civil rights in 
the Province, nor to the administration of justice in the 
Province, nor to the constitution of Provincial Courts for 
the administration of Justice in the Province. The term 
"constitution" in this connection was relied on by the 
appellant. But tlie primary and proper meaning of the 
word as here used is, as given in the dictionaries, " the 
act of constituting ; formation." It is, I think, synony- 
mous with the word "establishment," which is used in 
sect. 101 of the B. N. A. A.ct. 

The taking ^l evidence in this Province to be used in 
civil actions pending in foreign tribunals, is not a subject 
which is assigned to the exclusive legislative authority of 
the Province by sect. 92, of the B. N. A. Act, because such 
proceedings are of extra-provincial pertinence and do not 
relate to civil rights in the Province. The line of reason- 
ing in The Niagara Election Case (1), strikes me as 

(1) 29 U. C. C. p. 261. 



188.1 
Wetmbrkii, 

AND 
.rONIW. 

lioyd. C. 



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Re 

Wbthkhkll 

AND 

Jones. 
Boyd, C. 



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I I 



318 



ONTARIO HIGH COURT OF JUSTICE-CH. D. 



applicable to the Dominion Act which is now impeached 
as ultra vires. The Dominion Parliament has in effect 
constituted the Courts of Ontario, and their Judges 
Dominion Coui-ts for the purpose of taking such evidence 
in aid of foreign tribunals as a matter of international 
comity. It is to be noted that Wilson, C. J., who origi- 
nally dissented from the majority of the Court in the 
Niagara Case (1) retracted that dissent, and expressed his 
approval of that case: Regina v. O'Eourke (2). The 
whole argument for the appellant in this matter is 
answered by the observation of Lord Selborne in Valin 
V. Langlois (3). " There is nothing here (in the Act) to 
raise a doubt about the power of the Dominion Parlia- 
ment to impose new duties upon the existing Provincial 
[716] Courts, or to give them new powers, as to matters 
which do not come within the classes of subjects assigned 
exclusively to the Legislatures of the Provinces." 

The order appealed from is therefore properly made 
pursuant to a statute which was within the competence 
of the Dominion Parliament, and the appeal should be 
dismissed, with costs. 



Ferguson, J.: — 

I am of opinion that quite enough is contained in the 
judgment in the case of Valin v. Langlois (4), to indicate 
what the judgment should be in this case, and I concur 
in the judgment and conclusion of the Chancellor that 
the appeal should be dismissed, and the order affirmed. 
I think there should be costs of the appeal. 

(1) 29 U. c. C. P. 261. 

(2) 32 U. C. C. P. p. 40i!; an<c vol. 2, p. 660. 

(3) 5 App. Cas. p. 120 ; ante vol. 1, p. 164. 

(4) 5 App. Cas. 115 ; arUe vol. 1, p. 158. 



ONTARIO HIGH COURT OF JUSTICE-Q. B. D. 



319 



[QUEEN'S BENCH DIVISION.] 
Gibson v. McDonald. 

[Reported 7 Ontariu Reports 4^1.] 
County Judge's jurisdiction — Oronpitnj Clauses Act — R. S. 0. c. 4^, 

An Act of the Ontario Legislature provided that the County Judge 
of one County might preside at the Sessions in a County other 
than that of which he was Judge : 

Held, by Armour and O'Connor JJ. , (Wilson C.J. doubting), that 
this enactment was not within tlie competence of the Legislature. 

On the 27th of November, 1884, Osier, Q. C, for Gibson, 
moved, pursuant to notice given in accordance with 4-6 
Vict. c. 6, s. 6, for an order for the issue of a writ of 
prohibition staying all further proceedings in the matter 
of an appeal to the General Sessions of the County of 
Renfrew from the conviction of two magistrates, of and in 
the Temporary Judicial District of Nipissing, of one 
George McDonald, for an assault on the said Gibson, on 
the grounds: 1. That no appeal will lie to the General 
Sessions of the Peace for the County of Renfrew from a 
conviction by a magistrate or magistrates in the Tempor- ' 
ary Judicial District of Nipissing, the conviction appealed 
from having been made by magistrates in the said Tem- 
porary Judicial District. 2. That the chairman who pre- 
sided at the said General Sessions of the Peace for the 
County of Renfrew was not the Judge of the County of 
Renfrew, but was a Judge of an adjoining County, to wit, 
the County of Lanark. 

Osier, Q. C, in support of the motion. As to one 
County Court Judge acting in a different County for 



1880 
Jan. 0. 



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32(1 ONTARIO HFOH <'0[TRT OF .IllSTK'K-Q. B. D. 

another County Judge, he referred to th(> B. N. A. Act, 
sect. i)2, sub-sect. 14; R. S. 0. c. 42, ,s,s. 22-35, and I.'. S. 0. 
c. 44, ss. 0, 7, H. A County Court Judge appointed for a 
particular County has no criminal jurisdiction outside of 
his own Count}' : Wihoa v. McGuire (I), 

Irving, Q. C, for the Crown. Regina v. Bennett (2), 
(ietermined that the Ontario authorities could appoint 
Justices of the Peace under the Confederation Act, sect. 
02, sul)-sect. 14, and a magistrate so appointed under the 
Ontario statutes is a good appointment for the tran.saction 
of all macfisterial business within such a Judicial District. 
The Thrasher Case, (8) submitted to the Supreme Court by 



(1) 2 O. R. 118 ; ante vol. 2, p. 665. 

(2) 1 O. R. 445 ; ante vol. 2, p. 634. 

(3) [The following case respecting 
the status of the Su|)renie Court of 
British Columbia, and the power of 
the Legislature of that Province to 
legislate in respect of proceedings in 
that Court, and the residences of the 
Judges thereof, was submitted to the 
Supreme Court of Canada, in Setvell 
V. Tke B. C, Towimjand Transjwrta- 
tion Company, commonly called the 
Thrasher Case : — 

"Important questions, requiring 
an early and definite answer, affect- 
ing the status of the Supreme Court 
of British Columbia, and the power 
of the Legislature of the Province to 
legislate in regard to procedure in 
that Court, and the residences of the 
Judges thereof, having been raised 
on the hearing of what is commonly 
known as the Thrasher Case, had 
before Sir M. B. Begbie, Chief Jus- 
tice, Mr. Justice Crease and Mr. 
Justice Gray of that Court, under 
circumstances not, it is thought, ad- 
mitting of an appeal to the Supreme 
Court of Canada, the opinion of the 
Supreme Court of Canada is desired 
by His Excellency the Governor- 
General in Council upon the follow- 



ing questions referred under the pro- 
visions of sect. 52 of ' The Supreme 
and Exchequer Court Act:' 

"1. Is the Supreme Court of 
British Columbia a Provincial Court 
within the meaning of the 14th sub- 
sect, of sect. 92 of the B. N. A. Act ? 

"2. Has the Legislature of the 
Province exclusive legislative autho- 
rity over the procedure in all civil 
matters in the Supreme Court of the 
Province? If not, to what extent 
has it such authority ? 

" 3. If that Legislature can make 
rules to govern the procedure of that 
Court, can it delegate this power to 
the Lieutenant-Governor in Council? 

"4. Is the 'Judicial District Act, 
1879,' British Columbia, within the 
powers of the Legislature of that 
Province? If so, does it apply to 
Judges appointed before that Act 
came into force ? 

' ' 5. Are the following Acts passed 
by the Legislature f)f British Colum- 
bia, namely : 

"The 'Better Administration of 
Justice Act, 1878' (42 Vict. c. 20. 
1878) ; 

"42 Vict. c. 12 (1879), An Act to 
amend the practice and procedure of 
the Supreme Court of British Colum- 



ONTAIUO HIGH COUilT OF .1 US ilC !•:-(,). M. D. M'il 

tho Governov-donoral, shews the powors of Provincial 1886 
Lt'gislatureH to legislate in cases providing for the Judicinl (iuiHON 
services of Judges. The R. S. 0. c. 42, s. LS, is the one moDonald. 
under which County Court Judges have been autl\orized vrhTmknt 
to act in certain cases beyond the limits of their own 
Counties, and Wilson v. McGuire (1), maintained the 
legislation which was moved against. 

lAish, Q. C, for the original defendant. As to the ques- 
tion relating to the County Court Judge, Valin v. Lamj- 
lo'iK (2), was a decision in favour of what has been done 
l)y the Ontario Legislatuie in passing the Act in ijuestion.- 
The Judicature Act enables the Judges of one of the 
Superior Courts to sit in any of the other Divisions of the 
High Court. 



bia, and for other purposes relating 
to the Administration of Justice ; 

"44 Vict. c. 1, An Act to carry 
out the objects of the ' Better Ad- 
ministration of Justice Act, 1878,' 
uiid the 'Judicial District Act, 
1H7!I:' 

" So far a.s they relat<! to procedure 
in the Supreme Coiu-t of British 
Columbia, within the legislative 
:iuthority of tlie Legislating' of the 
I'l-ovince?" 

The following is the opinion of the 
Supreme CoiU't on thi' above case, 
ivported 4 Canada Law Times, \>. .53: 

1. The Court is of opinion that the 
Supreme Court of British Columbia 
is :i Provincial Court, within the 
meaning of sect. 1)2, sub-sect. 14, of 
tlie B. X. A. Act, 18(57. 

2. The Court is of oijinion that the 
Legislature of the Province has ex- 
clusive legislativ(! authority over the 
|ii(icedure in all civil matters in 
tile Supreme Court of the Province 
"liich come within the jiu'isdiction 
I if the Provincial Legislature. 

H. The Court is of opinion that the 
Legislature can make rules to govern 
21 



the procedure of that Court in all 
such matters as are limited by the 
preceding answer, and can delegate 
their power to the Lieutenant-Gov- 
ernor in C(mncil. 

4. The Court is of opinion that the 
"Judicial District Act, 1879"(B.C.), 
is within the {)owers of the Legisla- 
ture of the Province, and that it does 
ai)ply to the Judges api^tinted l)efore 
that Act came in force. 

5. The Court further held that, so 
far as they relate to procedure in the 
Su])renie Court of British Columbia, 
the fiillowing Acts were constitu- 
tional : The Better Administration 
of Justice Act, 1878 (42 Vict. c. 20); 
42 Viet. c. 12 (187!)), An Act to 
amend the practice and procedure of 
the Supreme Court of British Colum- 
bia, and fur other piu'poses relating 
to the Administration of Justice; 
44 Vict. c. 1, An Act to carry otit the 
objects of the P)etter Administration 
of .fustice Act, and the Judicial Dis- 
trict Act, 187U.1 

(1) 2 O. R. 118 ; ante vol. 2. p. (iGo. 

(2) 5 A pp. Cas. 11,5; ante vo], 1, 
).. 158. 



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.S22 ONTARIO muH rornr ov .iusticf-q. n. d. 

Oa/er, Q.C, in repl}', referred on the generul con.stitii- 
tional qiu'stion to He S(]mcr{l)\ Lenoir v. Ritchie {2). 

Wilson, C.J.: — 

[After (liscussin^4' whether an ap|teal would lie from the 
convicting Justices and conchiding that it would not, the 
learned Judge said, p. 408] : 

Upon the point of the County Court Judge of Lanark- 
presiding on the hearing of the appeal in the County <»f 
l.'enfrew I give no positive opinion, as it is not necessary 
to do so; but 1 am more in favour of holding that the 
('ounty Court Judge of Lanark had the power to preside, 
than to hold he had not. 



Armour, J. : — 

[After discussing whether an appeal would lie and con- 
cluding that it would not, the learned Judge continued, 
p. 411]: 

As to the second contention, that the person who pre- 
sided at the Court of General Sessions of the Peace for 
the County of Renfrew, at which this appeal was heard, 
had no authority so to preside, 1 have but little to add to 
what I said in Wilson v. McGuire (8), for this is only 
another phase of the same usurpation. 

I do not decide or discuss, but expressly reserve the 
question as to the power of this Province to appoint 
Justices of the Peace, and to appoint County Court Judges 
to be Justices of the Peace for every Cour'y an«i [art of 
Ontario; nor do I discuss the pow ' .lis Province to 

provide that the Judge of the Coun .»urt of the ( >nt}' 
of Lanark shall be chairman at thi ' Jenera! Sessions of 
the Peace for the County of Renfrew, for th. < has not been 

(1) 46 U.C.Q.B. 474 ; ante vol. 1, p. 789. 

(2) 3 Can. S.C.R. 575; ante vol. 1, p. 488. 

(3) 2 O. R. 118 ; ante vol. 2, p. 665. 



ONTARIO HIGH COURT OF JUSTICE-(^ H. D. 823 



IHN'i 



so provided ; hut it is provided that the Judge of tlio 
C,!ounty Court of the County of Renfrew .shall he chair- (inwoN 
man of the General Sessions of the Peace for the County M()Uon\i.i> 
(tf Renfrew, and when this appeal was tried the Judge of ^,.„7,^. j. 
the County Court of the County of Lanark was presiding 
[415] as chairman of the General Sessions of the Peace 
for the County of IJenfrew only and not otheiwise than 
hy virtue of his oftice of Ju<lge of the County ( 'ourt of the 
County of Lanai'k, which, in the view I take, he had no 
light to do. 

In my opinion, therefore, both contentions must prevail, 
and the order must be absolute for a prohibition. 

( )'CoNNOR, J. : — 

Two (piestions were presented for the consideration of 
the Court : (1) Whether an appeal lay from a conviction 
of Justices of the Peace in the Temporary Judicial District 
of Nipissing, to the General Quarter Sessions of the Peace 
for the County of Renfrew, the County nearest to Nipis- 
sing, or not. (2) Whether, if the appeal lay, the Judge 
of the County Court of the County of Lanark had autho- 
rity to preside at the said Sessions and try the appeal, or 
not ; the Counties of Renfrew and Lanark being grouped 
together and forming a District for judicial purposes, 
under cap. 42, Revised Statutes of Ontario. 

[After discussing the first question and concluding that 
there was no appeal, the learned Judge continued, p. 415]: 

The second question, pj'opounded and argued with much 
skill and ability on both sides, involves the " constitution- 
ality " of a statute of the Legislature of the Province of 
Ontario (1). This question presents an inquiry which is 
pregnant with grave considerations arising from a due 
appreciation of the serious consequences which may result 
from an erroneous decision either way. Declaring a 



(1) 39 Vict. c. 14 (R. S. 0. c. 42, s. 16, et seq.) 



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(ilBSON 
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324 



ONTARIO IIIGir COURT OF JUSTICE- (]. H. D. 



P!U 



statute affecting general and important niattora void must 
involve great responsibility, because interests of greater w: 
less, and probably of very great general import-iuce, aie 
almost sure to be injui'ed. Hence Mr. Justice Cooley, in 
his able and well considered Treatise on Constitutional 
Limitations, aptly observes : 

" It must be evident to any one that the power to 
declare a legislative enactment void is one which the 
Judge, conscious of the fallibility of the laiman judgment, 
will shrink from exercising hi any case where he can con- 
sistently, with a due regard to duty and official oath, 
decline the responsibility." And he adds : 

" In declaring a law unconstitutional, a Court must 
necessarily cover the same ground which has already been 
covered by the legislative department in deciding upon 
the propriety of enacting the lav/, and they must 
indirectly overrule the decision of that co-ordinate depart- 
ment. The tnsk is therefore a delicate one, and only to 
be entered upon with reluctance and hesitation." 

But how much more forcibly do such remarks ap[)ly to 
» like proceeding in this country, whei'e the expression 
" constitutionality of a statute " is the lesult of a new 
departure and the creation of a new practice previously 
unknown to Canadian and British affairs, and to parlia- 
mentary and judicial practice, than to the legislative and 
[410] judicial system of the United States, where that 
institution was made a fundamental principle of theii- 
constitution, as a result of popular volition. 

Thei^, ' is a fundamental })rinciple of a new constitii- 
tiou, resulting immediately from the will of the people in 
a state of revolution. Here, it is merely a new thino 
(Migrafted on an old constitution, as a mere outgrowth (»i 
circumstances resulting from the necessities of local posi- 
tion in this new world, and of colonial dependence. Anil 
for the same reasons the application of the institution i-* 



ONTAUIO HIGH COURT OF JUSTICK— Q. 15. L). 



:}25 



also i!'or<' difficult and irksome here than it is in the if^^"' 
rnited States. Giiwon 

In the present case the duty cast on the Court is pecu- McDonam'. 
liarly onerous and delicate. The Act in question purports oc^jor j. 
tf effect peculiar changes and new ar.d essential arrange- 
iii'nts in nn important, though infi.-rior, hranch of the 
jiidieijil system of the Province. 

It was passeil, Mcted upon and put into operation several 
y-ars ago, and it has continued in operation since, not- 
withstanding that doubts concerning its validitv have 
always existed and been frequently expressed. 

It may easily be imagined, therefore, that important 
interests of both a ]iublic and private natiu'e must be dis- 
turbed and att't'Cted, in most cases injuriously, if tlie 
statute be found destitute of authority and consequently 
void. It is impossible to calculate the evil results which 
may he expect '<' to result from the confusion created by 
•^'> disturbing a cause. 

But, on the other hand, allowing matters to continue and 
proceed under such a statute can lead only to a greater 
accumulation of evil results and more disastrous conse- 
([I'^nees ; for sooner or later the statute is sure to be brought 
tu the crucial test, be the consecpiences what they may. 

It is the privilege of every man to insist that his rights 
an 1 interests sliall be regulated by laws of undoubted 
validity. The sooner then a statute, which is seriously 
b' Heved by many, and especially by a considerable portion 
I't'the legal iirofession, to be unconstitutional, is authorita- 
[417] tively jironounced ujion the better. The public 
iiitrr.-st rc(|uii'cs that proceedings undei' such a stnt\ite 
^liuitjd be stayed, if it be void; oi", if possessed of the 
authority it purports to have, it is necessary, or at least 
a'lvisable, that doulits respecting it should be set at rest 
by a declaration ol: the proper tribunal, clotlu'<{ with the 
necessary authority. 



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V. 

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O'Coiiiior, J. 



:i2G 



ONTARIO HIGH C^OURT OF JUSTICE— Q. B. D. 



Impressed with this view of the subject, I pioceed to 
the consideration of the second question raised and await- 
ing decision. 

The Judge of the County Court is, by an old statute, 
which does not appear to have been repealed, Chairman 
of the Court of General Quarter Sessions of the Peace in 
the county for which he is commissioned ; and this is 
imperative: Con. Stat. U. C. c. 17, s. 5, and the original 
statute there referred to ; and see also R. S. O. c. 44, s. 6, 
which is precisely the same. The Judges were appointed 
by the Governor-in-Council. 

Section 96 of the B. N. A. Act provides that " The 
Governor-General shall appoint the Judges of the Superior, 
District, and County Courts." 

Section 1, c. 15, Con. Stat. U. C. provides : " There shall 
be in every county, or union of counties, in Upper Canada, 
a Court of law and record to be styled the County Court 
of the cr^unty of , or united counties of , 

(as the case may be) ;" 

Section 2 of the same Act provides : " The Governor 
shall, from time to time, appoint under the great seal, one 
person or two persons, being a barrister or barristers, of 
at least live years' standing at the bar of Upper Canada, 
to be the J.-.lge or Junior Judge in each of the said 
(Jourts." 

The Judge is therefore appointed under tlie great seal 
to be and he is the Judge in the County ( -ourt of the par- 
ticular county ; and by section n, he "shall reside within 
the county for which he is appointed." Section 7, referring 
to the Judge, Junior Judge, etc., of the County Court, 
uses the expression, " within his county." Section 8 gives 
the form of oath the Judge is to take, wherein he swears 
[418] that he will truly and faithfully, etc., " execute the 
several duties, powers and trusts of Judge of the County 
Court of the county of 



ONTAHIO HIGH COURT OF JUSTICE-Q. B D. 



327 



1885 



AM). 



It is, then, abundantly evident that the Judge, Junior 
Judge, etc., is appointed for a particular county, and for oibson 
one county only ; he must reside therein, and his oath of mcDon 
office applies to that and no other county. But, as tt'cJnm>r J 
already stated, the Judge of the County Court of the 
county " shall preside as Chairman at the General Quarter 
Sessions of the Peace for the county ; but in case of the 
absence from sickness, or other unavoidable cause, of the 
Judge of the County Court, and of the Junior and Deputy 
Judge thereof, the justices ^present shall elect another 
Chairman j^ro tempore." 

Section 8 of c. 44, R. S. O,, omits the latter part of the 
foregoing clause of the consolidated statutes, which pro- 
vides for the election of a chairman pro tern., and provides 
that : " Wherever, from illness or from other casualty, the 
Judge who is to hold the sittings of the General Sessions 
of the Peace, is unable to hold the same at the time 
appointed therefor, the sherifi' of the county . . may 
adjovirn, by his proclamation, the said Court . . from 
day to day, until the Judge is able to hold such Court, or 
until he (the sheriti) receives other directions from the 
Judge or Provincial Secretary." 

The consolidated statute uses the expression," General 
Quarter Sessions of the P "ce," and in the Ontario Act it 
is the " General Sessions oi the Pence;" but I presume 
both expressions refer to, and mean the same thing. Both 
statutes seem clearly to enact that the Judge, or Junior 
-liKl^'e, etc., shall ]ireside as chairman of the Quarter Ses- 
sions ; in fact, the duty of so presiding is attached to the 
ottice, and to the individual only as the incumbent of the 
office. Then, if the Provincial Legislature has no power, 
as I hold it has not, to appoint a ( 'ounty Court Judge, or 
to give him power or authority as such, neuheihas it, in 
my opinion, power to authorize a County JudjT'* <^" preside 
at the Quarter Sessions of a county other th.' > ' xt for 



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(Gibson 

r. 

McDONAI.li. 

O'Coi.noi J. 



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[419] wliich he is api»ointe(l l»y the Governor-rioiioral ; 
for that authority is inherent in and a iunction of the 
office of the Judge of tliat otlier County, whicli tliat Judge 
is sworn to perform. In fact, to hohl otherwise would be 
to hold that a Provincial statute nuiy authorize a class of 
persons to act as County Court Judges in Counties for 
which they have never heen appointed as .such by tlie 
Governor-General, and therefore to act as County Court 
Judges without having been appointed as sucli. But the 
exclusive right to appoint the Judges is reserved to and 
vested in the Government of the Dominion, and even the 
I'arliament (if the Dominion cannot divest the Gove; n- 
ment of that power, for it cannot so change the B. N. A. 
Act. ■ 

The Piovincial Legi.slature has, then, no power or autho- 
rity to authorize or make sucli appointments. It is true that 
the Ontario Act does not purport directly to make or 
authorize such appointments, but it attempts to do so 
indirectly, by assuming to clothe the Judge of a County 
Court, who has been duly appointed for that County, with 
the powers and authoiity of a Judge of the County Court 
in other Counties, which are not included in his commi.s- 
si«)n as united Counties. But the Legislature cannot do 
indirectl}' that which it is precluded from and has no 
power to do directly. 

It was sugge^'te<l on the arginnent bv counsel fbr tiie 
Province, tliat the etlectof the Act in question was merely 
that it ap))ointed a certain person designated by the name 
of his office wlio was to preside at the Quarter Sessions, 
and that the Legislature hatl powei" to do this. I cannot 
accept this suggestion as a valid argum<;nt; it begs the 
question rather than establislies tlu* proposition. Tlie 
Provincial Legislature may, I ])r(>sume, alter and changf 
the constitution of the County ('ourt an<i of the Quarter 
Sessions, as it lias altered the constitution of the Superior 



ONTAKIO II Kill COUUT OF .IL'STICK-V. 1!. I). 



M29 



Courts, but it cannot appoint or authorize tlie appointment W8"> 
of the Judj^es of those Courts. By tlie clause of the (}ib.son 
B. N. A. Act, ah-eady cited, the appointment of the Judges m, dosaii.. 
is vested ill the Dominion Government. (»(\^,r j. 

[420] But besides this it must be obsei'ved that by the 
9th section the Executive Government of and over Canada 
is continued and vested in tlio Queen. 

The Queen is neither part nor brancli of the Provincial 
fie,t,nslature, but she is of the Dominion Parliament. 

The Dominion of Canada is tJie lariter and more ucneral 
oi'Ljanization, and its executive has by s' ct. 12 of tht; 
B. -N, A., or Constitutional Act, all the powers which the 
Province had at tlie time of the Union, "as far as the same 
continue in existence and capable oi being exercised after 
the Union;" that is to say, its powers are as nearly like 
and as extensive as are those of the executive of the 
United Kingdom, as the powers of a colony may be in its 
relations to the parent state. 

The Province is within the Dominion, is part thereof, 
and therefore narrower and necessarily subordinate in 
position and extent of ai;thority ; and according!}-, after 
providing and constituting tiie Provincial Executive Gov- 
ernment, the Act, by its Goth section, provides that the 
j.owers of its executive are those of the late Province, "as 
far as the same are capable of being exercised after the 
I'ni'.n in relation to the Government" of the Province. 

It is remarkable that the woi'tls, "as fai- as the same 
C'litinue in existence,"' which are in the 12th section, are 
omitted fron\ the Gotli section. Of the precise effect of 
this omission 1 am not prepared to sjteak with eonfidenct ; 
liut I think it indicates that some powers continued to 
exist in relation to the Dominion and were vested therein, 



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but which did not continue to exist in relation 
Province — that, in short, all the former powers continued 
to and were vested in the Dominion, us far as thev could 




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830 



ONTARIO HIGH COURT OF JUSTICE-y. B. D. 



be exercised, but that the Province took only such powers, 
being part of those continuing to exist, as were suitable 
to its position, legislative powers and needs required in 
relation to the Dominion and its Government. 

The Governor-General is the direct representative of 
the Queen, her only representative in Canada, holds his 
[421] commission immediately from her Majesty, and exer- 
cises the larger powers of the Executive of the Dominion, 
inferior only to the powers of the Imperial Governmeiit, 
but superior to those of the Provincial Government. 

He, therefore, exercises all the executive power which is 
vested in Her Majesty by the Act, and the prerogative 
powers of the Crown to the fullest extent that they are 
capable of being exercised in relation to the Dominion ; 
that is, to the fullest that is consistent with colonial 
dependence, for that is the effect of his commission and 
instructions. The Queen is the foundation of justice. 
Justice is, in the theory of the constitution, as it was 
originally in fact, administered by the Crown ; that is, by 
the king in person, in his Aula Regia. 

No person can administer justice but by the authority 
and in the name of the Queen. 

She, therefore, appoints the -fudges or Justices, who 
administer justice in her Courts. 

In Canada the Governor, who alone represents her there, 
appoints the Judges in her name, under the advice of his 
council. 

The criminal law is a branch of that justice which can 
be administered in Her Majesty's name only, by Justices 
appointed by her for that purpose. 

A limited portion of the criminal law is administered in 
the Cour^ of General Quarter Sessions, and it seems impos- 
sil)le to escape the conclusion that the persons who admin- 
istered it there must be conunissioned thereto by Her 
Majesty. This position is strongly fortified by the fact 



OM'AKIO HIGH COURT OF .TUSTICK-Q. 15 D. 



:;:}1 



that legislative power over the crimiiuil law, and of oiin- 
inal procedure in the Courts, is vested exclusively in the 
Parliament of the Dominion. A full consideration of the 
whole subject properly regarded in the light of the Con- 
stitutional Act leads inevitably to the conclusion that all 
persons who administer the criminial laws, which is the 
branch in question in the present case, by whatever name 
they may be designated, must be commissioned by the 
Crown for that purpose; and in Canada that means by 
the Government of the Dominion. 

[422] To make the matter clearer, it ma}'^ be as well to 
examine somewhat more in detail the composition of the 
Executive of tho Province, Section 58 of the Act provides 
that an officer, to be styled the Lieutenant-Governor, shall 
be appointed by the Governor General in Council, by 
instrument under the Great Seal of Canada. 

Section 03 provides that : " The Executive Council of 
Ontario . . . shall be composed of such persons as the 
Lieutenant-Governor, from time to time, thinks fit ; and 
in the first instance of the following officers, namely : — 
the Attorney-General, the Secretary and Registrar of the 
Province." etc. 

These form the Government of the Province with the 
powers mentioned in section Go, already referred to. 

Of this Government neither the Queen nor her repre- 
sentative is a part. It is composed merely of " officers," 
of whom the Lieutenant-Governor is an officer of the 
Dominion, appointed by the Governor General. This 
distinction is a mai'ked one, which seems in itself clearly 
to exclude from the Provincial Government the exercise 
of the Crown's prerogative, and the statutory powers 
reserved to the Crown in relation to the administration of 
justice in Canaila. This seems to have been the opinion 
of thj^ late Chief Justice Harrison, as cautiously indicated 



188.5 

(•iBSON 

V. 

NLcDONALl). 

O'Connor, J. 



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ONTARIO nUiU COUi;!' Ol' .JUSTlCt;— Q. J{. 1). 



in Rcijuni \. A liter (I;, and I am awaic that it in a 
measure conflicts with an ohltci' didam cxpiessed in the 
same case by tho present Chief Justice! of this Court ; hut 
tlie question has undergone much discussion and considera- 
tion wliercby additional and clearer light has been cast - 
on tlie subject since tlien. 

It only remains now to examine, more ftdly than 1 have 
already done, and compare the legislative pijwers of the 
Parliament of the Dominion and of the Legislature of the 
Province in relatif)n to the administration of justice. 

Section t)l of the Constitntidual Act provides that "it 
shall be lawful for the Queen, by and with the advice 
and consent, &c., to make laws for the |)eace, order, and 
good government o^' Canada, in relation to all matters not 
[42:3] coming within the classes of subjects l>y this Act 
assigned exclusively to the Legislatures of the Provinces ; 
and for gre>iter certainty, but not so as to I'estrict the 
generality of the foregoing terms of this section, it is hereby 
declared that (notwithstanding anything in this Act) the 
exclusive legislative authority of the Parliament of Canada 
extends to all matters coining within the classes of subjects 
next hereinafter enumerated ; that is to say : — 

"27. The Criminal Law, except the constitution of 
Courts of Criminal Jui'isdiction, but including the Proce- 
dure in Criminal Matters." 

The Parliament of Canada, then, has power " to make 
Liws for the peace, order, and good government of Canada 
in relation to all matters," &c. Then observe the force of 
the words, "and for greater certainty, but not so as to 
restrict the generality of the foregoing terms," &c. 

The expression, " The Criminal Law," in sub-sect 27, 
miist bo read with reference to the expression "for the 
peace, order, and good government of Canada," in the 
principal elau'je. 



(1) -IJ IT. C. (,>. 15. ;$!)1 : iviti' V..1. 1. (). 722. 



make 


lanada 


)vce of 


as to 


ct. 27, 


or the 


n the 



ONTARIO IIKiH COUUT OF JUSTICE— t^ U. D. 



lilili 



I88ri 



(lllWON 
V. 



Then it is neeessaiy to obseive the force of the conckid- 
itig paragraph of tlie same clause : "And any matter coin- 
ing within any of tlie classes of subjects enumerated in ^rtDoNAi-n. 
this section sluill not be deemed to come within the class o^,^,,. j. 
of matters of d local or private nature com|)rised in the 
enumeration of the classes of subjects by this Act assigned 
exclusively to the Legislatures of the Provinces." 

Section 92 provides : 

"In each Province the Legislature may exclusively 
make laws in relation to matters coming within the classes 
of subjects next hereinafter enumerated, that is to say: — 

" l-i. The adininistration of justice in the Province, 
including the constitution, maintenance, and organization 
of Provincial (Courts, both of civil and of criminal juris- 
diction, and incliniing procedure in civil matters in those 
Courts." 

[424] "16. Generally all matters of a merely local or 
private nature in the Province." These words of a " local 
oi' private nature," repeated here and emphasized by the 
adverb " merely," make the limitation of the power of 
the Provincial Legislature to such matters clear and precise. 
Its power is undoubtedly, then, subordinate to that of the 
Parliament of Canada, and in no respect are their powers 
co-ordinate. 

Then, as regards the criminal law, it stands thus 
l)etween the Parliament of Canada and the Legislature of 
the Province. The Provincial Legislature has the exclusive 
right to make laws for the constitution, maintenance, and 
organization of the Courts ; th( '^aHiament of Canada has 
the exclusive control of the criminal law, and of the pro- 
cedure in criminal matters. 

Then, besides the constitution of the Courts, the appoint- 
ment of the Judges and the procedure in criminal 
matters, there is a residue, called the administration of 



AVi 












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'11 



V 
V 

M 






:'U 



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1885 

(rlltSON 
V, 

Nr<"l>nN.\i.ii. 
O'Coiiiiiir. •!, 



♦ 



lilU ONTAHIO HIGH ClOUHT OF JUSTICE -C^. It. I). 

justice, which is assigned exclusively to the Legislature 
of the Province. 

It does not include, but excludes the appointment of 
iluilgcH and the criminal law and procedure, but it includes 
the administration of justice in other respects, and the 
constitution of the Courts in all respects, except as to the 
person who ailministers justice therein. The criminal law 
and procedure, and the appointment of the Judges, are 
carefully excluded from the legislative control of the 
Province. In short, tie Legislature of the Province 
possesses only enumeraf^'d powers of a local and a private 
nature conferred on it; but the Parliament of Canada 
possesses the general poweis of legislation necessary for 
the peace, order, and good government of (-anada, only 
part of which is ('numerated. 

1 therefore conclude that the Leijislature of the Province 
has no power, by Act or otherwise, to confer on any person 
authority to preside at the Quarter Sessions in any 
County to administer the criminal law therein, instead of 
the Judge or Junior Judge, &c., of the County Court of 
[425] that County ; and it makes no difi'erence, I think, 
that such person is the County Judge of another County. 
The Act in question is therefore not within the competency 
of the Provincial Legislature, and is void. (1) 



(1) [An unsuccessful attempt ha.-< 
since been made, in McKenzie v. 
Dancey (May 26, 1885), to bring this 
point before the Court of Api)eal, 
but the ca.«i- was disposed of on 



other grounds. It is understood that 
the Government of Ontario iiuri)osc 
bringing the matter Ixifore the higher 
Courts at the first opi)<)rtunity.] 



ONTAUIO HIGH ( OlfRT OK .lUSTlCK— M. O. 



l\:i: 



[MASTER'S OFBICK.] 
Clarke v. Union Fire iNSbnANCE Company. 

[Rejyorki.l 10 OnUirio Pnirticc Report.^ •>7.). ] 
ProriiiridI iiirnrpovntiun — B. N. A. Ar,t, n. !tS, ,s///»-.s. //. 

A company incorporated by a Provincial Legislature for the business 
of insui'ance, jwasessea the same capacity and francliises within 
the jurisdiction creating it as a company incorporated by the 
Imperial or Dominion Parliaments ; and may enter into con- 
tracts outside the Province wherever such contracts are recog- 
nised by comity or otherwise. 

The term "Provincial objects" in the B, N. A. Act refers to local 
objects within a Province, in contradistinction to objects which 
are common to all Provinces in their collective or Dominion 
quality. 

In this case a decree was made at the suit of a creditor, 
referring it to the Master in Ordinary to wind up the 
company, and to adjudicate upon the claims of creditors 
holding policies of the defendant company. Prior to the 
decree a common law action had been commenced by the 
clc^.mants, the Export Lumber Company of New York, 
against the defendants, on their policy, which was referred 
to the Master pursuant to the decree. The other facts of 
the case appear in the Master's judgment. 

Falconhridge, for the Export Lumber Company. 

W. A . Foster, for the plaintiff. 

A. C. Gait, for the defendants. 

[314] Mr. Hodgins, Q. C. :— 

This is a claim brought in by the Export Lumber 
Company of New York, against the defendants, a fire 



iMvS.S 



lli't. Xil, 



% 



Ul 



t Ail 



:{.}(i 



()\TAI!I() MICH COITIIT OK .MISTICK -M. (>. 



« 



1888 insm'aiKH' C()iin)any incoiiioi'utod l»y the Lej^islatuiv of 

(";.AHKE Ontario, :!!j Vict. c. })3. The policy, (hited 5th August, 

r.NioN Kiiii; l^*S(), was (leliviToti to the ehiiniants on the 7tli or Stli, 

f<!?»'i.'!^vv'^' -Tid the tire (xiciirred on the 10th of the same month. 

,, .'. ,, ,, On the 11th th(> claimants tender' d a checuie for the lU'e- 

— iiiiiiin, winch was immediately returned hy the defemlant.s. 
The principal defences are that the defendants heiiii,' 
a provincial company luul only limited powers, and 
coidd not contiact out of tliis Province ; and that, the pre- 
mium not having been paid or tendered until after the 
loss occurred, the policy is void. 

In arguing that the contract was iiltr<t rires, it was 
contended that as the B. N. A. Act (sect. 92 sub-sect. 11) 
empowered the Provincial Legislatures to incorporate 
companies with "Provincial objects," this corporation 
could have no existence, and therefore no power to con- 
tract, outside the Province ; and in any event thnt not 
having ol)tained legislative sanction authorizing it to 
make contracts of insurance outside the Province, this 
contract was void. 

The substantial objection is against the legislative 
powers of the Provincial Legislatures ; for it was contended 
that a corporation created l>y them has not the .status nor 
capacity to contract outside of provincial Jurisdiction 
which a Dominion corporation possesses. There is no 
warrant for this contention. Thei-e is nothing in the 
1). N. A. Act, nor in the classes of subjects within their 
legislative authority, which would ])lace these Legisla- 
tures outside the definitions given V)y writers on this 
subject: "The colonial Legislatures, with the restrictions 
necessarily arising from their dependency on Great fJritain, 
were sovereign within the limits of their respective 
territories:" 1 Story's Const., 4th (m1., sect. 171. "Tlu' 
legislative bodies in the deinrndencies of the Crown, have 
8ubmodo the .same powers of legislation as their prototype 



ONTAIUO HIGH COUUT OF JUSTICE-M. 0. 



387 



■^lature of 
I Augu.st, 
th or 8th, 
ic iiiunth. 
)!• the itit'- 
etendants. 
mts heiiiL,' 
rt'evs, and 
it, the pre- 
atter the 

res, it was 
h-sect. 11) 
ricorporate 
ovporation 
er to con- 
; that not 
;ing" it to 
dnce, this 

llegislative 
cntended 
4atus nor 
ristliction 
icne is no 
o- in the 
ihin their 
Leu'ishi- 
on this 
Istrictions 
It Britain, 
lespectivr 
" The 
m, have 
prototype 



,-iiis, (^c. 



in Engl.ind, suhjcct, however, to the final negative of the is«JJ 
Sovereign:" 1 Broom's Com. 123. Ci-mikk 

[81')] The term " incorporation of companies with Pro- vnion Fiue 
vineial ohjects " in the B. N. A. Act (sect. 92 snb-,sect. 1 1) o';,'",'^';.'.'' 
defines tlie chisses of cor[)orations within the legislative j, 
authority of the Provinces ; and its meaning must be 
gathered from analogous clauses empowering then? to 
make laws in relation to " local works and undertakings " 
(sub sect. 10) and " matters of a merely local or private 
nature in the Province" (sub-sect. 10) and under which it 
js obvious the legislature may incorporate companies for 
like purposes. These references show tiiat the terms. 
" provincial " and " local " are interchangeable, and nuist 
Ije construed to mean " hwal objectis" witliin a Province, 
in contradistinction to objects common to the several 
Provinces in their collective or Dominion (quality, and 
which are within Dominicm legislative jurisdiction. 

This power to incorporate companies is incidental to a 
sovereignty, though such power may be delegated. " The 
Sovereign, it is said, niay grant to a subject the power of 
erecting corporations, . . but it is really the crown 
that erects, and the subject is but the instrument :" 1 Bl. 
Cora. p. 452. Corporations may be erected by charter or 
by Act of Parliament " of which the Royal assent is a 
necessary ingredient." Ibid p. 451. 

This assent of the Crown, as essential to the validity 
of the Acts of the Provincial Legislatures, has been ques- 
tioned by the obiter dicta of some learned Judges, who 
say that Her Majesty forms no constituent part of the 
Provincial Legislatures as she does of the Dominion 
Parliament. This denial of the legislative authority of 
the Crown in Provincial legislation touches the validity 
of all Provincial Acts since confederation, as the usual 
form of the Provincial statutes is " Her Majesty, by and 
with the advice, etc., enacts." "The legislative power 



11 



I, 



' ;.i 



',\ ' 



•'I 



•if; 

ii 



Si 

■m 

i 

m 
If 



i 



338 



ONTARIO HIGH COUllT OF JUSTICE— M. O. 



1S83 



Cl.AUKK 
V, 

Union Fiiik 
Insuhanck 
Company. 

Hodgins, (^.C, 



(says Lord Hale) i.s lodged in tlio King, with the nssent 
of the two Houses of Parliament:" 1 Hale's Juris. Ho. 
Lds. 4: "The making of statutes is hy the king with the 
assent of Parliament:" 1 Whitelock King's Writ, 406: 
'• The king has the prerogative of giving his assent tosu'^h 
[.■)!()] bills as his subjects, legally convened, present to 
him, that is of giving them the force and sanction of a 
law:" Bacon's Abr. tit. Prerog. 489. See also 4 Co. Ins. 
24. 

This is l)ut the conunon law on the legislative preroga- 
tive of the Crown. A reference to the Imperial Acts 
which gave legislative institutions to this Province prior 
to the B. N. A. Act, will shew that the Provincial laws of 
Upper Canada were to be made by " His iNfajesty, his 
heirs and successors," (31 Geo. o c. 31), and of Canada by 
" Her iMajesty her heirs or successors," (3 &; 4 Vict, c 35) 
by and with the advice and consent of the other legisla- 
tive bodies ; and these Imperial Acts in so far as they 
recognise the legislative prerogative of the Crown in this 
Province have not been repealed, but are substantiality 
continued by sect. 129 of the B. N. A. Act. 

The question, however, api-ears to have been deter- 
mined in 1870 by the Judicial C>ommittee of the Privy 
Council in Theherge v. Landrii (1) — which is binding on 
all our Courts — where Lord Cairns, L. C, referring to an 
Act of one of the Provincial Legislatures then under 
review, held that it was an AcC which had been assented 
to by the Crown, and to which the Crown therefore was 
a party. 

The B. N. A. Act created two separate and independent 
governments with enumerated pnd therefore limited 
parliamentary pow^^'-s. These dual governments within 
their detinr 1 limits of jurisdiction now exercise the legis- 
lative and executive powers previously vested in one 



(1) 2 App. Cas. 102, 108; am: vol. 2, p. 1. 



sscnt 

, Ho. 

h the 

406: 

3nt to 
n of a 
3. Ins. 



ei'uga- 
l Acts 
J prior 
laws of 
sty, l>is 
lada by 
t. c 35) 
legisla- 
is they 
m this 
antially 

dctcr- 
Privy 
dint^ on 

\if to Ull 

Tinder 
isseuted 
ore was 

pendent 
limited 
1 within 
|he legis- 
in one 



!.■ 



ONTARIO HIGH COURT OF JUSTICE— M. O. 

frovernment ; and althoufdi both exist within the same 1^83 
territorial limits, their powers are separate and distinct, Cr.AHKi; 
and they act separately and independently of each other x'nion Fiuk 
within their respective spheres. The powers of the legis- cvAn'-vNY.' 
lative department of the Provincial Governments have jf^^^,,~7^, j^, 
been defined by our Provincial Courts. The case of Re 
Goodhue (1), decides that there is no limitation imposed 
on the Provincial Leijislatures as regards the extent to 
which they may affect i)rivate rigJits and matters of a 
merely local and private nature m the Province ; and that 
[317] as to such objects they can pass laws to the same 
unlimited extent that the Imperial Parliament may in 
the United Kingdom. In liefj'ina v. Hodye (2), it is stated 
that the Domini(jn and Provincial Legislatures derive 
their powers from the same .source ; and that " the power 
to make laws in relation to the several classes of subjects, 
legislation upon which is, by the Imperial Act, connnitted 
exclusively to the Provincial Legislatures is as large ^id 
complete as it is in the classes of suhjects committed b^' 
enumeration of subjects to the Dominion Parliament. 
The limits of the subjects of jurisdiction are prescribed ; 
but within tho.se limits the authoritv to legislate is not 
hmited." See also Hodye v. The (^ucen (8). 

These cases shew that both the Dominion and the 
Provincial Legislatures have plenary' powers of legislation 
to the extent nece.s.sarj'' for the etlicient exercise of the 
exclusive legislative authority of each ; and that they 
therefore are sovereignties within the definitions given 
in 1 Story's Coast, sect. 171 ; Phmips v. Eyre (4) ; and The 
Queen v. Burnh (5). Each has authority to create cor- 
porations ; and therefore a company incorporated by a 
Provincial Legislature has, for the purposes of its business, 

(1) 19 Grant 3GC>;antc vol. 1, p. .WO. (4) L, R. 6 (l B. 20. 

(2) 7 App. Rep. 24(), 251; ante p. ICtJ. (5) 3 App. Cas. 889 ; imt Appeudi.x 1. 

(3) 9 App. Cas. 117 ; ante p. 144. 



i 




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■ ■ 1 -. f • ; 


! 




! '■ 




' 


r-l: 


'.1 






iin 



Mill 



;n 



ii 



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^mm 



340 



ONTARIO HIGH COURT OF JUSTICE— M. 0. 



V. 

Union Fiuk 

iNSlliANCK 

Company. 
Hodgins, Q.C. 



1883 the same corporate franchises aiid powers witliin the- 
Clarke jurisdiction creating it, as a company incorporated by tlie 
Imperial or the Di>minion Parliament, and may tiansact 
its business outside the Pi'ovince wherever by comity or 
otherwise its contracts are recognised. 

This power to transact insurance business outside the 
provincial jurisdiction creating such corporations is i-egu- 
lated within Canada by the Act 40 Vict. c. 42 sect. 28, 
which provides that companies incorpoi'ated by a Provin- 
cial Legisiatui'e for carrying on the business of insurance 
within a Province, may, under certain C(jnditions transact 
such business throughout the Dominion. And the case of 
C'dizeiif< Inxuvii nee Co. v. P(f,rsons (1), illustrates to some 
extent the jurisdiction of the Provincial Legislatures over 
companies incorjiorated liy the Imperial or Dominion 
Parliaments. 

[The remainder of the judgment i.. omitted, the same 
not having reference to the constitutional question.] 



(1) 7 M'V- Cn>. W>; unit vdl. 1, p. 205. 



QUEBEC flOUnx OF REVIEW. 



341 



■ill 



5' i 



Mn th& 
d by the 
transact 
:jmity or 

side tlie 

is regu- 

sect. 28, 

, Provin- 

nsiirance 

ti-ansact 

le case of 

; to some 

ures over 

dominion 

the same 
Ion.] 



-t 



COURT OF T-EVIEW. 
The Hon. J. A. MoussEAfT, Atkjrney-Gexeral v. Bate. 

[lirporled 27 L. C. Jurist 153.] 

Letters Patent, proceediwjs ti> set anide — o~> Vict. c. 56, D. 

Proceedings in the nature of a scire facias, to set aside Letters 
Patent of invention issued under the Dominion Statute, 
35 Vict. c. 2(3, canuut be instituted in the name of a Pnjvincial 
Attorney-General, and can only be legally brought by the At- 
torney-General of Canada. 

This was a review of a judgment rendered by the 
Superior Court at Montreal (Taschereau, J.) on the 1st of 
December, 1882 (1). 

The counsel for the plaintiff submitted the following 
argument in review on the question as to the right of the 
Provincial Attorney-General to sue : 

In Con. Stat. Can. c. 34, s. 30, is found practically the 
same provision as is contained in sect. 29 of the present 
Act, except that under that Act only Upper and Lower 
Canada were included, and there being no provision re- 
quiring the patentee to elect domicile, the action might 
be brought in either Province, whereas under the Act of 
1.^72, the information must be laid before the Court of 
the place where the patentee elected domicile. 

The next Act to bo referred to is also a Statute of 
United Canada, commonly called the Code of Civil Pi-o- 
cedure of Lower Canada, Art. 103.5, The Attorney-Gen- 
eral referred to in said article was necessarily the Attor- 
nev-General of United Canada. 



1883* 
Jan. S3. 






h rl 



* Present:— Si COTTF, Touhaxck and R.M.vvn.r.E, J.T. 
(1) Post, )). 34.'). 



w 



342 



QUEBEC COURT OF REVIEW. 



1883 

MOUSSKAU 
i'. 

Batk. 
Argi'mknt. 



I . 



By sect. 18o of the B. N. A. Act it is provided as fol- 
lows : — "Until the Legislature of Ontario or Quebec 
otherwise provides, all rights, powei's, duties, functions, 
responsibilities or authorities at the passing of this Act, 
vested in or imposed on the Attorney-General, Solicitor- 
General, etc., by any law, statute, or ordinance of U])per 
Canada, Lower Canada, or Canada, and not repugnant to 
this Act, shall be vested in or imposed on any officer to 
be appointed by the Lieutenant-Governor for the dis- 
charge of the same or any of them." 

We may look in vain through the B. N. A. Act to dis- 
cover anything repugnant to the position occupied Ijy 
the Attorney-General in tliis case ; indeed se(..t. 92, sub- 
sect. 14, is in direct confirmation of tlie right of the local 
Attorney-General. If the taking of the present action is 
not an act performed in the administration of justice, it 
is difficult to see what it is. If the local Attorney- 
General does not represent the Crown in matters relating 
to the administration of justice under the ])atent law, 
what reason can be given for his doing so under the crim- 
inal law ? Tlie fact is that before the Courts of the Pro- 
vince the Crown is represented and acts through the 
Attorney-General of the Province: Attorney -General of 
Ontario v. Niagara BriJge Company {!). 

Does the Dominion Statute of 18f)8, c. 39, sect. 3, inter- 
fere with the doctrine above laid down ? That Act does 
not say that the Minister of Justice is to represent the 
Crown in relation to all laws passed by the Dominion 
Parliament, but only in relation to laws administered 
under the authority of that Parliament, such, for example, 
as require to be put in execution by Dominion Courts. 
But the Patent Act is not sueh a law. It is administered 
like the criminal law by the Provincial Courts. See, 
also, the subsequent clause of the same section, where it 

(1) 20 Grant, 34 ; nnti; vr.l. ], p. 813. 



i)f 



C^UEBEC COURT OF llEVIEW. 



:Ui] 



is provided that the Minister of Justice shall have the 18S3 
regulation and conduct of all litigation for or against the mols.skau 
Crown, or any public department, in respect of any sub- jj'.;,,, 
jects within the authority or jurisdiction of the Dominion. vuiiuMi-NT 
Tt is evident that the words litigation for or against tlie 
Crown mean nothinir more than those cases where Mu> 
Crown appears as an onlinary litigant witli riglits to 
enforce in its own behalf and for its own benefit, or 
where damages or remedies iiave accrued to the Crown 
in conse(juence of the infraction of some law of the 
Dominion, If this section means more than this, it is 
contrary to sect. 135 of the B, N. A. Act and unconstiiu- 
tional. 

The counsel of the defendant, with a view to obtain a 
confirmation of the judgment appealed from on its merits, 
ac(|uiesced in the argument of the plaintiff's counsel as 
to the mere right of the plaintiff to institute such a pro- 
ceeding as the present one. 

The following was the judgment in Review : — [lo6] 

[Tranddfed.] ' - ' 

Considering tluat bv the Statute of Canada of 186S, 
81 Vict. c. 'id, it is enacted that the Minister of Justice 
tihall be ex opiclo Attorney-Ceiieral of Her Majesty in 
Canada, having the superintendence of all matters con- 
nected with the administration ol justice in Canada not 
being within the jurisdiction of the Governments which 
compose it ; 

Considering that it is, moreover, enacteil by the same 
statute that the Attorney-General of Canada shall dis- 
charge the duties which belong to the Attorney-General 
of England, and also the iluties which, by the laws of the 
ditierent Provinces, belong to the Attoniey-General of 
each Province up to the period when the B. N. A. Act. 



i 



i"- 'i 



m 






■' '-,1 



•I'T 



■m 



344 



QUEBEC COURT OF REVIEW. 



1883 
r. 

B.VTK. 

JcnriMKNT. 



1867, came into etfect, wMch laws ought to be adminis- 
tered and enforced by the Government of the Dominion, 
that he shall re<:fulate and conduct all litigation between 
the Government or any public department concerning 
subjects which are within the authority or jurisdiction 
of the Dominion ; 

Considering that in the present case the litigation is 
respecting a patent for an invention granted to the said 
Bate by the Minister of Agriculture, one of the public 
departments of Canada, and to wdiich the said Holman 
objects in conformity Avith the provisions of the Statute 
of Canada, c. '55 (1) ot 1872, and as is allowed by sect. 29 ; 

Considering that by the Statute of 1872, sect. 52, of c. 
34, of the Consolidated Statutes of the former Province of 
Canada concerning patents of invention, and all laws and 
other Acts relating to patents of invention have been and 
are rej^ealed ; 

Considering that legislative authority over patents of 
invention is exclusively within tlie jiirisdiction and 
powers of the Federal Parlian)ent and Government, and 
that by the Act of 18G8, alread}- cited, all that can relate 
to the interpretation of a Fedei'al Statute and of the 
Statute relating to patents of invention is within the 
province and jurisdiction of the department of justice of 
the Federal Government, it f(>llows that the writ of scire 
/rtc'ia.s of which sect. 21) of the Statute of 1872 speaks, 
should issue under the fiat of the Attorney-General of 
Canada, and not of tlie Attorney-General of the Province 
of Quebec ; 

Considering, also, that by the Act of 1808 the Parlia- 
ment of Canada has motlified and changed in conformity 
with the B. N. A. Act, 18G7, the provisions of sects. 129, 
130, 134 and 135 of that Act concerning certain powers 
to be exercised bv the law officers of the Provinces so far 



(1) Tliu Act rcfi-rred to is 35 Yift. c. '_'(). 



i. 



► 



idrainis- 
3minion, 
between 
icerning 
isdiction 

Ration is 
the said 
3 public 
Holiiian 
Statute 
sect. 29 ; 
52, of c. 
tvince of 
aws and 
)cen and 

tents of 

on and 

cut, and 

,n relate 

of the 

lin the 

stice of 

of scire 

speaks, 

leral of 

rovince 

Parlia- 

formity 
its. 129. 
powers 
s so far 



QUEBEC COURT OF REVIEW. 



345 



as the Parliament of Canada should not have otherwise 
provided, and that by reason of this legislation these 
powers and functions cannot be exercised except in terms 
of the laws promulgated by the Parliament of Canada ; 

'''he Coui-t adjudges and declares that the writ of scire 
facias issued in this case under the fiat of the Attorney- 
General of the Province of Quebec has been wrongly issued 
and contrary to the provisions of law in that behalf ; con- 
firms on this ground, the judguient of the Superior Court of 
the 1st of December, 1882, without adjudging and decid- 
ing on the matters pleaded by the contestant and the 
other grounds set forth in the judgment in question; 

Reserves to the said plaintiff his right to proceed [157] 
as he may be advised in order to obtain the fiat of the 
officer appointed by the statute for issuing a writ of scire 
fnc'ias ; 

Orders the v'aintifF to pay the costs incurred iu the 
Court of Review. 

Archihald X- McCormich, for plaintiff. 

Church (C- Co., for defendant. 



JriMJMEXT IX THE SUPERIOR CoiKT, {hi'finr wJiich, thr ,sin7 came 
oriyinaJlif, so far a.i the same relaf>'!f to the Constitutional ri}testio)i). 

[Tmn.stafr.q. 

(licpovS'd ;i7 L. C. J'irist, 153.) 

Taschereau, J. : — 

Cuusidering that tlie patent of iiivuiition which it is sought to 
.set aside in this case was grau'el h\ tho said Commissioner of 
Patents, acting for tlie (Tovornnn'Ut '4' Canada, under the provisions 
of tl)o Patent Act of 1872, and its amendraonts ; that the said Act 
sects. 21), ;50 and 31) provides for the pr>v'eediiig:i to l)e taken, for 
the ])urpo8e of setting aside patents of invention granted under the 



18S3 
rdorwsKAt.- 

V. 
]jATK. 

JrnoMKNT. 






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QUKMEC COURT OF REVIEW. 



.MoUSSKAt 

Batio. 

Sup. C, 
C.iiu'ljte. 



1.8.>J cautli(jrity of its provisionc, and gives jurisdictinn in such matter to 

the Superior Court of the Province of Quebec, when the patentee 
lias his domicile in tlie said Province, which Court is then called on 
to enforce a Inw exclusively federal ; that by the U. N. A. Act, [154] 
18G7, patents of invention and all legislation connected thercAvith, are 
under the excluHive control and jurisdiction of the Parliament of 
Tasclu.-n-:ui,J. Canada; that b.v the Act 31 Vict. c. 3!), the: Attorney-General of 
Canada is alone competent to regulate and conduct all litigation 
for or iigainst the Crown, concerning the subjects which come 
under the authority or jurisdiction of the Dominion, and conse- 
(juently was alone coiniieteut to take action for the purpose of 
causing the setting aside of a patent of invention granted by the 
fjovernment of the Dominicn in virtue of a federal law ; 

Considering that the Attorney-Ueneral of tlie Province of Quebec, 
by means of a writ of scire f<iria:i, can only demand the setting asiile 
of letters patent issued by the Government of the said Province and 
under the authoriiy of Provincial laws ; 

Considering that a patent of invention can only be set aside by 
scire fdcian absolutely and throughout the whole Dominion, and not 
as to one Province alone, and that so (in addition to the above 
reasons) the Attorney-Generr^ of a Province would be a'together 
unal)le to apply to the tribunals of this Province for the purp se of 
demanding such a setting aside of a patent which would take effect 
throughout all Canada ; 

The Court sustains the defence, annuls and sets a-ide the writ of 
scire facim issued in this case and non-suits the plaintiff; and as to 
the costs of defence incurred by the said defendant, the Court recom- 
mends that they be paid to him by the proper person. (1) 



(1) [In B. v. Pattce, 5 P. R. (Ont.) 
{Jan. 5, 1871), on an ajijilicatiun to 
set aside a writ of sci. fa., i.ssued to 
rescind a [latent, it was lield by the 
present Master in Chambers for 
Ontaric (Mr. Dalton, Q. C), then 
Ch^rk of tlie Crown and Pleas of 
the Court of (Queen's Bench, sitting 
as a Judge in Chambers, that the 
Attorney-tieneral of Ontario was the 
proper authority to grant the. /f«< in* 
Micli a case. Tlie following is the 
judgment, so far as relates to the 
coustitntional question : — 

After deciding that a tiat for the 



issue of the writ was necessary, the 
judgment continues, p. 206: 

It may provoke a smile that an 
otficer of the Court, in deciding a 
matter of practice, should incident- 
ally consider a quPHtion under our 
constitution, which is of some im- 
portance ill itself. :xiid is a part of 
larger (piestions. It is of little 
matter, however, where it may be- 
gin ; it must come to the decision of 
the Court. I was told, wlien I sug- 
gested the question on the argument, 
that it was very doubtful whether the 
Minister of Justice or the Attorni'y- 



QUEHKC COrUT OF KKVIKW. 



'^47 



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:<:;v 



General for Ontario be the i>ro]ier 
authority to grant a fiat in sncli a 
case. I must, therefore, HUfipiisc it 
is doubtful, though I myself cannot 
see the grouu<Is for doubt. I cannot 
think that two authorities exist, r/</(rr 
of whom may grant it. .Some one 
authority, and one imlii, nmst answer 
here the position of the Attorney- 
General in England in ri'spt-ct of this 
matter. 

The B. N. A. Act, sect. !)2, enacts 
that, "Int'ich Province the Legis 
lature may exclusively make laws in 
relation to matters coming within 
the classes of subjects next hercin- 
fifttr cmimcrati'd, that is to say (after 
twelve oth(!r heads) — 1.3. Property 
and civil rights in t!ie Province; 
l-l. The administration of justice in 
the I'rovince, including tlie constitu- 
tion, maintenance, and organization 
of Provincial CNnirts, both of civil 
and of criminal jurisdicti'iii, and in- 
cluding jn'ocedure in civil matters in 
those Courts." 

These sections express the ])owers 
of the Legislature of Ontario. 

[297] Tiien, as to the Executive, 
sect. 135 enacts that, " Until the 
Legislatin-o of Ontario or (Quebec 
otherwise provides, all rights, powers, 
duties, function.s, responsibilities, or 
authorities, at the passing of this 
Act, vested in or imposed on tlie 
Attorney-General, Solicitor-General, 
Secretary and Registrir of the Pro- 
vince of Canada, ^linister of Finance, 
Commissioner of Crown Lan<ls, Coni- 
mis.sioner of Public Works, and 
^linister of Agriculture and Re- 
ceiver-General, by any law, statute, 
or ordinance of [Jp|ierC;inadi, Lower 
Canada, or Canada, and not repug- 
nant to this Act, shall be vested in 
or imposed on any officer to be ap- 
pointed by the Lieutenant-Governor 
for the discharge of the same, or any 
of tliem." So that, as is consistent 



mois.seal' 
Batk. 



and natural, the executive and legis- 1871 

lative finictions of tlie Goverinnent 
of Ontario seem to be co-extensive. 

The worils of this statute have Vieen 
well weighed. But what definition 
of "pi-ojierty and civil rights" can iv. t: P.vttkk. 
exclude tlie right of enforcing a civil 
remedy in the Courts? To lawj'crs, 
that seems the practical jiroof and 
test of all right ; w ithout it, at any 
rate, no other right is of any real 
value. And. finther, there i.-- attri- 
buti'd to thi' li'cal jurisdiL'ti<ni '"the 
administration of justice in the Pro- 
vince, . , . including jirocedure 
in civil matters." Tlien if the legis- 
lative and executive jiowers, as to 
"l)rci|i('rty and civil riglits in the 
Province," and "the aclministration 
of justice," and as to civil proceed- 
ings ni tile Courts, are in the Govern- 
ment of Ontario, can it be thought 
that any other authority is for the 
prtjseiit purpose indicated tlinn that 
of an otiicer of (.)ntario resi)onsible 
to its Legislature. For, let it be 
borne in mind, that he who has the 
discretion to grant, has also the dis- 
cretion to withliold, and that it is 
<mly by scire fricias that a subject 
in Ontario, aggrieved by a patent 
wrongly issued, can seek the remedy 
of its avoidance. 

I desire not to amplify ; but other 
reasons, in and out of the Act, point 
to the concUision tliat the Attorney- 
General of Ontario is th.e anthor'ty 
that must grant or ref ise thv fiat 
which is necessary to the real plain- 
tiff here to pursue thir remedy. I 
shall not be understood as si)eaking 
of the case where the Crown itself 
[298] seeks to avoid a patent ; T sjioak 
only of the jiresent case, where a 
subject domiciled in Ontario seeks 
to avail himself of the ]ieculiar jn-ivi- 
leges of tlie Crov.'n to assert his cjwn 
private interests.] 



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QUEUEC SUPERIOK (JOUIIT. 



18M3 
June 20, 



SUPERIOR COURT. 
Griffith Petitioner ; 

AND 

Rioux ef nl ReKpondcnti. 

[liepurti-d 6 L<-<irtI Knrs, JIL] 
Intoxicoting Liiiuors — Pruhibitioti — TcmiKnDice Act of ISGJf. 

A Proviiuial Legislature caniifit repeal tlidse sections of the 
Tomperanco Act of 1804, which relate to the prohibition of 
the sale of iutoxioatiny liiiuors. 

Brooks, J. : — 

This is a petition by Edsvard Oriffith, asking that 
res[)onde!its, George E. Rioux, District Magistrate, and 
Allan D. G. Hazel, complainant, be restrained from pro- 
ceeding with a prosecution brought before said District 
Magistrate in November, 18!S2, by .'^aid complainant Hazel, 
agai. st said petitioner, for having on the LSth September, 
1882, sold intoxicating licpiors in quantity less than live 
gallons, conti-ary to the Temperjance Act of 18G4, 27 tic 
28 Vict. c. 18 (Dunkin Act), and asking the penalty pre- 
scribed by that Act, of $50; alleging : 

l.st. That said Act of 1864, was not in force in Ricli- 
mond, and no such penalty as 850 existed. That the only 
penalty was S75, provided by Quebec License Act of 
1878. 

2nd. That petitioner had a shop license under hand of 
Revenue Inspector. 

'3rd. That if the Temperance Act of 1864 was ever in 
force in Richmond, it had ceased, by reason of incorpora- 
tion of the Town of Richmond, under special charter, 45 
Vict, c, 103, to form part of the territory of County of 



QUEBEC SUPERIOR COURT. 



;U9 



Kiehnionil, ceased to be bound by tlie by-laws of said 
County, and therefore the Tenii)crance Act not in force 
tliere. That respondent llioux had no jurisdiction to try 
the case, but had illegally proceeded to hear the evidence, 
and was about to render judgment, and was about to 
declare the License Act of ISTO, so far as it repeals the 
27 6z 28 Vict. c. IS, and sect. lOSG of Municipal code, so 
fur as it repeals said 27 & 28 Vict, c, LS, nllra vircf<. 

The petitioner alleges, besides the repeal of all those 
portions of 27 & 28 Vict. c. 18, by Quebec License Act, 
']l Vict. c. 2, sect. 12, under which the prosecution was 
brought, that he had a perfect right to sell, having obtained 
a shop license from the Revenue Inspector of the District ; 
that in March, 1877, a by-law was enacted under Dunkin 
Act, so called, by which it was pretended that the sale of 
intoxicating liquors was prohibited within the limits of 
Richmond County, then including tlie now Town of Kieh- 
mond, but on the 27th May, 1882, Richmond received 
special charter from the Legislature of Quebec, 45 Vict, 
c. 103, and since then, it has formed no portion of the 
(.'ounty, and the said by-law has had no force there ; that 
by its charter, Richmond had specially granted to it, the 
right to restrain, regulate or prohibit the traffic in liquor, 
and on 19th June, passed a by-law, regulating the 
license fee, and petitioner had paid the same as well as the 
government fees, and obtained a shop license, and that 
lespondent Rioux had no right or jiu'isdiction to question 
the validity of repealing statutes, or investigate said case. 

Respondent Rioux appeared and declared " qu'il s'en 
rapporte a j ustice." 

Respondent Hazel j)ersisted in Ids right to proceed 
under Temperance Act, alleging that this Act had never 
been repealed, i. e., those portions under which he was 
])roceeding, and that any action by the Legislature of 
Quebec, so far as it pretended to repeal any of said Act, 



1S83 

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1883 

(Jl'.IKFITH 
V. 

Rioux. 
Brooks, J. 



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850 



QUEBEC SUPERIOR COURT. 



was ultra vires; that it was specially provided liy the 
charter of Richmond Town, 45 Vict. c. 10-S, s. .S, that "the 
by-laws, orders, rolls and municipal Acts, which governed 
the territory heretofore forming the Village of Richmond, 
shall continue in force until they are amended, repealed 
or replaced 1)}^ the Town Council to be hereafter elected." 

That no repeal of the Temperance Act had been had, 
and Richmond Tov.*n had no right, by by-law or otherwise, 
to authorize the issuing of licenses, or grant certificates, 
and their action was null in that i-espect; that the "Town 
Council to be hereafter elected," could not be elected under 
said Act until January, 1888, while the offence committed 
[212] was in November, 1882 ; that respondent Rioux did 
not exceed his jurisdiction in hearing said case; that 
license had no effect on i>rosecution : 27 &- 28 Vict. c. 18, 
s. 1 2, sub-s. 2. 

Petitioner Griffith ff led amongst other documents, copies 
of license by-law of the Town of Richmond of June 19th, 
1882, ityled License By-law, authorizing collection of 
certain liceu'^e fees, fixing $G0 as fee to be paid for shop 
licenses. And the by-law of County Council, March 14th, 
1877, prohibiting, under Temperance Act, sale of liquors 
in said County, with certificate of approval thereof on 
l!Jth April, 1877, l)y municipal electors. 

No evidence is taken, but the" judgment is souglit upon 
the law as applicable to the cjise ; and at the argument, it 
was stated by both petitioner and respondent that 
they desired a judgment upon the point as to the 
power of the Legislature to repeal the provisions of 
the Temperance Act, providing penalty and proceduie 
for illicit sale of intoxicating liquors, and upon the power 
of the Legislature to do indirectly, i.e., by granting the 
charter 45 Vict. c. 103, what, it was alleged, they could 
not do directly, confer upon the Town oi Richmond, the 
right to restrain, regulate or prohibit the sale of any 



QUEHEO SUPKRIOR COUllT. 



:^-A 



spirituous, alcoholic, or intoxicating li(iuors within the 
limits of the Town ; it being urged by petitioner that the 
by-luws of the Council of the 19th June, 1882, regulating 
sale, i.e., fixing fees implied under their charter, repealed 
the County by-law, prohibiting the sale. 
The first and main question is : 

Had the Looal Legislature a right to enact .S4 Vict. c. 
2, s. 107, by which those parts of 27 & 28 Vict. c. 18, 
which provide for penalties and procedure to enforce them, 
were repealed ? 

In order to determine this, it is necessary lo examine 
the provisions of the B. N. A. Act, and see if this power 
could come under the class of subjects in sect. 92, with 
regard to which the Legislature was empowered exclu- 
sivel}' to make laws. If so, it must be under sub-sects. 8, 
!), 13 or IG. • . •• 

The Temperance Act being in force at the time of con- 
federation, remained so. until " repealed, abolished, or 
altered by the Parliament of Canada, or by the Legislature 
of the respective Province, according to the authority 
of the Parliament, or of that Legislature under this Act." 
(Sect. 129 B. N. A. Act.) It is contended that by the 
decision in Q.B., 1882, Suite v. The Corporation of Ihree 
Rivera (1), in which Mr. Justice Ramsay declared: " We 
hold that, under a proper interpretation of sub-sect. 8, the 
right to pass a prohibitory liquor hiAV for the purposes of 
municipal institutions, has been reserved to the Local 
Legislatures by the B. N. A. Act," it follows that the 
Legislature had the power to repeal the Temperance Act, 
but this, I think, does not at all follow, even if for the pur- 
poses of municipal institutions, the Legislature could pro- 
hibit. But it must be remarked that this case was that 
of Three Rivers incorporated prior to confederation i.e., 
in 1857, and which by its charter had certain special 

(1) 5 L. N. 330 ; ante vol. 2, p. 280. 



1883 

Griffith 

r. 
Rioux. 

Brooks, .L 



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1883 

Gkikfith 

r. 

Rioix. 

BrnokH, J. 



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352 



QUEBEC SUPERIOR COURT. 



powers as to restrictions and conditions under which the 
inspectors should grant licenses, and so far as report goes 
no prohibition was actually made, but only an amendment 
to a by-law, fixing the fees. Can they repeal a law 
passed by the late Province of Canada, which declared 
what was the penalty for illicit sale, and prescribed the 
mode in which its payment should be enforced ? 

As against this decision we have the declaration of the 
Chief Justice of the Supreme Court in the case of the 
City of Fredericfon (1). " When I had the honour to be 
Chief Justice of New Brunswick, the question of the right 
of tlie Locfil Legislature to pass laws prohibiting the sale 
or traffic in intoxicating liquors, came squarely before the 
Supreme Court of that Province, and that Court in the 
case of ReguKi v. The Justices of King's County (2), 
unanimously held that under the B. N. A. Act, the Local 
Legislature hud no power or authority to prohibit the sale 
of intoxicating liquors, and declared the Act passed with 
that intent, ulti'ct vires, and therefore, unconstitutional. 
I have carefully reconsidered the judgment then pro- 
nounced, and I have not had the least doubt raised in my 
mind as to the soundness of the conclusion at which the 
Court arrived on that occasion. I then thought the 
Local Legislature had not the power to prohibit ; I think 
the same now." 

In this judgment concurred Fournicr, Taschereau and 
Gwynne, JJ., Henry, J., dissenting. 

Taschereau, J., says; p. 5o7: "It is clear that the Canada 
Temperance Act, 1878, could not be enacted by the Pio- 
vincial Legislatures, for the simple reason that they have 
only the powers that are expressly given them by the 
[213] B. N. A. Act, and that the said B. N. A. Act does 
not give them the power to effect such legislation." 

(1) .3 Can. S.C.R. 505; ante vol. 2, p. 27. 

(2) 2 Pugi-ley 535; ante vol. 2, p. 499. 



lereau and 



QUEBEC SUPERIOR COURT. 



353 



It would seem that if they could not pass the Canada 
Temperance Act of 1878, they could not have passed that 
of 1864, and Mr. Justice Ramsay says in Suite v. Three 
Rivera (1), " I do not see how a Legislature has power to 
repeal what it cannot re-enact." 

In the present instance they have repealed portions of 
the Act of 1804, " in so far as relate to matters within 
this Province and matters within the control of the 
Legislature of Quebec," and have made new provisions, 
increasing the penalty. 

Does this come within either sub-sects. 8 or 9 of sect. 92 
of the B. N. A. Act ? 

The legislation is certainly not municipwl, because it 
merely says that for a violation of the By-law prohibit- 
ing altogether the sale, the penalty shall be for selling 
without a license, $75, instead of $50. 

It cannot be contended that this is given for the pur- 
poses of municipal institutions, as the only way in which 
it could be so construed would be if the prosecution had 
been in the name of the municipality, but here it is by a 
private individual. 

Again, it cannot be said to come under sub-sect. 9, as 
fines and penalties cannot be imposed " for the purpose of 
raising a revenue for provincial, local or municipal pur- 
poses." 

It is not a matter of police regulation : See Poulln v. 
The Corporation of Quebec. Chief Justice Meredith says, 
and his judgment was sustained in appeal (2), " Consider- 
ing that, although the Parliament of Canada, under the 
power given to it to regulate trade and commerce, alone 
has the power to prohibit the trade in intoxicating liquors, 
yet that the Provincial Legislatures, under the power 
given to them, may, for the preservation of good order in 



(1) 5 L. N. 330 ; ante vol. 2, p. 280. 

(2) 9 Can. S. C. R 185 ; 7 Q. L. R. .337 ; ante, p. 230. 



23 



1883 
Griffith 

V. 

Rioux. 
Brooku, J, 




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35-1 



QUEnKC SUPERIOR COURT. 



the municipalities which they are empowered to establish, 
and which are under their control, make reasonable police 
regulations, although ,«uch regulations may, to some ex- 
tent, interfere with the sale of spirituous liqucn-s." 

Ramsay, J., said : " It seems to me that this is purely 
a matter of police re^^ulation, and consequently it is 
within the powers of municipal corporations, and that 
the exercise of such a power cannot be considered as being 
a restriction of trade and commerce." 

Caron, J., held in Hurt v. The Corporation of the Count)/ 
of Missisquoi (1), " Que, comma les pouvoirs accordes aux 
conseils de comte, par les dix premieres .sections de I'Acte 
de Tempt^rance de 18G4, de prohiber la vente des boissons 
enivrantes, concernent I'industrie et le commerce, elles ne 
peuvent etre ni modifiees, ni abrogdes par la legislature 
de la Province de Quebec." 

Upon this point there would seem to be little doubt. 
Section 91 of B. N. A. Act, sub-sect. 2, confers exclusively 
the regulation of trade and commerce upon Parliament. 

The Supreme Court of Canada decided, in the case of 
the City of Fredericton (2), that unde- sub-sect. 2 of 
sect. 91 of H. N. A. Act, 1HG7, in regulation of trade and 
commerce, the Parliament of Canada alone has the power 
of prohibiting the traffic in intoxicating liquors in the 
Dominion or in any part of it. 

In Jlu8.sell V. The Queen (3) the Privy Council, in 
declaring the Temperance Act of 1878 within the power 
of Parliament, say : " Their Lordships having come to 
the conclusion that the Act in question does not fall 
within any of the classes of subjects assigned exclusively 
to the Provincial Legislatures, it becomes unnecessary to 
discuss the further -(piestion, whether its provisions also 
fall within any of the classes of subjects enumerated in 

(1) 3Q. L. R. 170; ante, vol. 2, p. 383. (2)3Can. S. C. R. 505; aiUc, vol. 2. p. 27. 
(3) 7 Ai.p. CaB. 829; ante, vol. 2, p. 12. 



QUKBEC SUPPnilOR COUKT. 



3o; 



section 91. In abstaining from thi.s discussion, they must 
not be understood an intiniatini^ any dissent from the 
opinion of the Chief Justice of the Supreme Court of 
Canada and the other Judges, who held tliat the Act, as a 
(••eneral rejjulation of the traffic in intoxicating li(nior.s 
throughout the Dominion, fell within the class of subject, 
" the regulation of trade and commerce," enumerated in 
that section, and was, on that ground, a valid exercise of 
the legislative power of Canada." 

The Provincial Legislatures have only such powers as 
have been conferred upon thera by the B. N. A. Act, and 
the whole of the balance or residuum is in the Parliament 
of Canada. 

The Privy Council has declared that Parliament has 
the riirht to legislate for the whole Dominion on the 
subject. 

The Supreme Court of Canada has declared that Piii 11a- 
uient has not only the right but the sole right to prohibit 
the sale of intoxicating liquors in the Dominion or in any 
[214] part of it. It is conceded that the Legislature 
cannot repeal what it cannot re-enact. 

The power to prohibit is admittedly not exclusively 
conferred upon the Legislature, and not being exclusively 
given under the B. N. A. Act to the Legislature, Parlia- 
ment can legislate. 

The Canada Temperance Act, 1864, passed by Old 
Canada, could only be repealed by Parliament, as the first 
10 sections have been by Canada Temperance xVct, 1878. 
If there is any conflict of authority as to wh(j shall legis- 
late upon the subject, the Legislature must yield to 
Parliament. Parliament has legislated. It has declared 
as to what municipalities the Act of 18G4 is repealed, i.e. 
the first ten sections. It has provided where it is not in 
force, new machinery for prohibiting ; it has provided pen- 
alties for infraction of the law and procedure to enforce, 



1883 

(JUIFKITH 
V. 

Rioux. 
liniiikM, J. 



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RlOLX. 

Brooks. J. 



356 



QUEBEC SUPERIOR COURT. 



and if it can do this, which the Privy Council has declared 
it can — the Local Legislature cannot have concurrent 
powers. Our Parliament must be supreme. Lord 
Carnarvon said in the discussion of his bill before 
the House of Lords : " That the authority of the Central 
Parliament will prevail whenever it may come in 
conflict with the Local Legislature, and any residue of 
legislation, if any, unprovided for in the specific classifica- 
tion, will belong to the central body." If this power 
belongs to Parliament, and it does, if it is not exclusively 
given to the Legislature, which is not pretended, the 
Legislature has, by License Act and its amendments, and 
by Municipal Code, Art. 1086, exceeded its authority. 

I cannot, in deference to the decisions in this matter, 
declare otherwise than that the amendments to the Tem- 
perance Act of 1864 are ultra vires. 

[The remainder of the judgment is omitted, the same 
not having reference to the constitutional question.] 

//. B. Broicn for petitioner. 
J. J. Maclaren for respondiiits. 



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QUEBEC! SUPKUIOU COUIiT. 



357 



SUPERIOR COURT. 
Ex PARTE Pillow. 

[Repwted 27 L. C. Jurid, 2l(].] 

Nuisance, Power of leyidatiou reupcdimj — Mnitiripal Itmiitntions. 

The power of the Parliament of Canatla to ciiiict a general law of 
nuisances, as incident to its right to legislate as to criminal law, 
is not inconapatible with a right in the Provincial Legislatures 
to authorize municiptal corjjorations to pa-ss by-laws against 
nuisances hurtful to public heiilth, as incidental to municipal 
institutions. 

This was the merits of a motion to quash a conviction 
niado on the ?9th November, 1882. 

The petitioners were occupants of a manufactory of 
cut nails, and it was complained that the chimney sent forth 
smok'j in such quantity as to be a nuisance hurtful to 
public health and safety, and that they refused to remove 
and abate the nuisance, contrary to the by-law of the 
city of Montreal, No. 130. 

The petitioners pleaded that the city had no jurisdic- 
tion to enact the by-law, and did not enact it in virtue of 
any competent legislative authority. The petitioners 
were convicted. 

TORR.VNCE. J.: — 

The main question as put by the petitioners is, — Had 
the Legislature of Quebec power to authorize the city of 
Montreal to pass the by-law ? Such power, if it exists, 
must be derived from the sects. 91 and 92 of the Ccmfed- 
eration Act, 1867. Sect. 91 enacts that " the exclusive 
legislative authority of the Parliament of Canada extmids 



1883 

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1888 to" " tlie ciinniml Inw"; "niicl any matter coming within 
any of the classes of suitjects enumerated in tiiis section 
shall not be deemed to come within the class oi" matters 
Torrancf, J. qj! ^ \^^QQ] ,,,• private nature, comprised in the enumeration 
of the classes of subjects Ijy this Act assigned exclusively 
to the Legislatures of the Provinces." Sect. 92 says that 
" in each Province the Legislature \x\\\j exclusively make 
hiws in relation to " " municipal institutions in the Pro- 
vince." 

The petitioner contends that among the subjects as- 
signed exclusively to the Parliament of Canada is the [217] 
criminal law, and that the subject matter of the by-law — 
a nuisance — is a matter of criminal law, referring to the 
text books on the subject. The city, on the other hand, 
contends that though the Federal Parliament has juris- 
diction over nuisances in general, it does not follow that 
the local Legislatures cannot prohibit insalubrious or 
dangerous establishments in a Province, or that they can- 
not confer upon municipalities the right of self -protection 
and of protecting the citizens of a locality against the 
dangers of similar industries. 

The by-law was niade under 37 Vict. c. 51, s. 123, sub- 
sect. 2 (Quebec) Charter of Montreal, and 42-43 Vi3t. c. 
53, s. 84, sub-sect. 8. The counsel for tlie city says that 
this power is comprised in the words " municipal institu- 
tions." If tlie city could not deal with these matters 
under its charter, the greater part of the municipal regu- 
lations would be ultra rire*', and the municipalities would 
be incapable of repressing abuses atieoting health or the 
security of citizens, and the words "municipal institu- 
tions" would have no meaning. 

The discussions which have already taken place in our 
Courts respecting the liquor laws throw a good deal of 
light on the respective powers of the Dominion and Pro- 
vincial Legislatures. In Suite v. The Corporatioi) oj 



QUEBEC SUPERIOR COUllT. 



359 



Thri'c Rivers (1) it was held that tlic power of the 
Dominion Legislature to pass a general prohil/itory lifpior 
law, as incitlent to its right to legislate as to public 
wrongs, is not iiicompatihle with a right in the Provincial 
Legislatures to ])ass prohibitory liquor laws as incident 
to municipal institutions; and in the case of Paid in v. 
The Citi/ of Quebec (2) Mr. Justice Tessier very perti- 
nently asks the question, is it not part of the municipal 
institutions to make disciplinary and police reg\dations to 
prevent disorder on Sunday and at night, by compelling 
tavern and saloon keepers to keep their drinking j)laces 
closed during that time ? Can there be any question 
as to the power of our Local Legislature, or even our 
municipal corporation, to prevent the sale and storage of 
powder, except in certain places, and with certain precau- 
tions for the safety of the public ? And, yet, this is a 
matter of trade like any other. 

I am justified in concluding that the power of the 
Dominion Parliament to pass a general law of nuisances 
as incident to its right to legislate as to public wrongs, 
is not incompatible with a right in the Provincial Legis- 
latures to pass the clause authorizing by-law 130 as 
incidental to municipal institutions. 

Macmaster, Hutchi nson <i' Weir, for petitioners. 

li. Roy, Q.C., for respondent. 



lss;» 

F.X PAllTK 
I'lI.I.oW. 

iirr.iiicc, J. 



(1) 5 L. N 330; ante, vol. 2, p. 280. 

(2) 7 Q. L. R. 337 ; ante, p. 230. 









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yUEBEC SUPERIOR COURT, 



SUPERIOR COURT. 

MOLSUN V. ClIAPLKAU. 

[Rfparhil (1 Le(jal News, 222.] 

Prtmnciul Executive — Smvrcign Authoritif. 

The Members of the Executive Council of a Province, under the 
B.N. A. Act, represent the Sovereign, and cannot be sued in 
the Civil Courts of the Province for acts performed by them 
in the discharge of their official duty. 

[Translated,] 

Papineau, J.: — 

The plaintiff against whom proceedings have been 
taken for expropriating certain lands under the Quebec 
Railway Act, 1880, sues the Hon. J. A. Chapleau and the 
Hon. W. W. Lynch, the former as past Commissioner and 
the latter as the present Railway Commissioner of the 
Province of Quebec, as well as Mes-sra. Simard, Hutchison,, 
and Brown, who have acted as arbitrators in the expro- 
priation proceedings, for the purpose of causing the award 
of the arbitrators to be set aside and new expropriation 
proceedings ordered. 

The defendants, the Hon. J. A. Chapleau and W. W. 
Lynch, except to the jurisdiction on the ground that they 
are improperly brought before this Court. 

1. Because they are sued in their character of Quebec 
Railway Commissioners only, and as such they are not 
subject to the jurisdiction of this Court unless in case of 
misdemeanour or of crimes, of v/hich there is no question 
in the case. 

2. Because in this character they are members of the 
Executive Council and advisei's of the chief of the State,^ 
the Lieutenant-Governor of the Province, and as such are 



QUEBEC SUl'EKIOR COURT. 



aoi 



only the agents of the Government and responsible to 
the Lieutenant-Governor and the Legislature alone. 

3. That it follows from the statement of the plaintiff, 
that it is in the name of Her Majesty our Sovereign, that 
these two defendants have performed the acts of which 
the plaintiff complains and that they cannot be brought 
before this Court for acts in which they have; been only 
the advisers and agents of Her Majesty. 

The plaintifl' replies to this exception that these two 
'lefondants have not acted in the name oi J 1 or Majesty in 
the circumstances stated in his declarafii»ii ; that these 
expropriation proceedings which hn'^ • givf n rise t,; the 
prosentproceedings,having been commenced by me former 
aiui continued by the latter, these twf> d fondants are 
triable by this Court under the circumstances disclosed in 
the declaration, which is only the result of tlie proceedings 
commenced by the said Hon. J. A. Chapleau, and an inci- 
dent of these proceedings become necessary in order to 
their proper termination. 

It is established by plaintiffs exhibit No. 10 (produced 
in the package of Exhibits No. 1245 between the same 
parties) that the expropriation proceedings were com- 
menced by the said Hon. J. A. Chapleau officially in the 
name of Her Majesty. 

The defendants have cited in support of their conten- 
tions the case of Church v. Middlewlsi^ (1); Gidley v. 
Falmerston (2); Todd's Parliamentary Government, vol. 
1, p. 291) et seq.; Dickson v. Comhermere (3); Broom's 
Constitutional Law, pp. 241 and 617 ; Unwin v. Woheley 
[223] (4); Macbeatk v. naldhnaad (5); Attorney General 
V. Mkldlem'isa (6); Mercer v. The Attorney General of 
Ontario (7). 



1SH3 

MOI.SDN 

1. 

ClUl'I-KAlI. 

I*ii|iincnii, •!. 



(1) 21 L. C. Jurist, 319. 

(2) ^ B. & B. 275. 

(3) 3 F. & F. 527. 

(4) 1 T. R. 674. 



(5) 1 T. R. 172. 

(6) 19 L. C. Jurist, pp. 253, 256. 

(7) 5 Can. S.C.R. 538 ; ante p. 1. 



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QPEBEC SUPERIOR COURT. 



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1883 

MOLHON 
V. 

Chaplka'j. 
Papineau, J. 



» 



The plaiuti^r maintains that the precedents cited are 
not applical;)le to the present case for several reasons {a) 
because in the cases of Hfddimand and Palinerston the 
defendants were sued personally for acts done in their 
character of agents of Her Majesty, while in the present 
case the defendants, Chapleau and Lynch, are sued, not per- 
sonally, but as commissioners and for acts done by them in 
that chai"acter, and that they are a qiiani corporation, (b) 
Because Haldimand and Pahnerston were really repre- 
sentatives of Her Majesty, while Messrs. Chapleau and 
Lynch were not ; that Her Majesty the Queen is in her 
proper person, and by her representative, the Governor- 
General, an integral part of the federal Parliament, but 
that she does not personally or by her representative 
form part of the Legislature of the Province of Quebec; 
that this intentional exclusion of Her Majesty from the 
local Government of the Provinces which compose the 
Union formed in virtue of the B.N.A. Act, 1867, is plain to 
every attentive reader of this Act of the Imperial Parlia- 
ment. Thus, the third and fourth paragraphs of the pre- 
amble of that Act deal not with a federation of the old 
Provinces, but purely and simply with the union of the 
Provinces. Section 3 speaks of one Dominion. The fourth 
says that the Union shall be formed ; the Union shall be 
declared to have taken effect; and section 5, " Canada 
.shall be divided into four Provinces, named Ontario, 
Quebec, Nova Scotia, and New Brunswick." The Domi- 
nion is a new creation of the law, and it is divided into 
four Provinces at the moment of its creation. 

Is it a question of the distribution of powers ? Sect. 
9: "The Executive Government and authority of and 
over Canada is hereby declared to continue and be vested 
in the Queen."" The Chief Executive Otiicer called Gov- 
ernor-General or Administrator carries on the Govern- 
ment in the name of the Queen (Sect. 10). His Coun- 



i. 



QUEBEC SUPEHIOR COURT. 



803 



cil is styled the Qiieen's Privy Council for Canada 
(Sect. 11). In a word all the sections of this article 3 
[" Executive Power"] up to section 10 inclusive, shew the 
Queen as retaining, with respect to Canada, the attributes 
of sovereignty. 

Is it a question of legislative power? Article 4 ["Legis- 
lative Power"] embracing section 17 ^nd the following 
sections confers this power on a Parliaiucnt composed of 
the Queen, the Senate and the Commons. What a con- 
trast when we come to the share of power granted to 
each Province by article 5 "Provincial Constitutions — 
Executive Power," The Queen disappears. Sect. 58 : 
" For each Province there shall be an officer styled the 
Lieutenant-Governor, appointed by the Governor-General 
in Council by instrument under the Great Seal of Canada ." 
This officer is not a deputy such as the Governor-General 
can nominate in the circumstances provided for in section 
14. He is merely an officer ; his council named by him is 
composed of the following officers : the Attorney-General, 
the Secretary and Registrar of the Province, the Trea- 
surer, the Commissioner of Crown Lands, the Commis- 
sioner of Agriculture and Public Works, and, in the Pro- 
vince of Quebec, the Speaker of the Legislative Council 
and the Solicitor-General. If wo pass on to the " Legis- 
tive Power," we do not find there any more either the 
Queen, or her representative or even a Parliament. Sect. 
71 : "There shall be a Legislature for Quebec consisting 
of the Lieutenant-Governor and of two Houses styled 
the Legislative Council of Quebec, and the Legislative 
Assembly of Quebec." Properly speaking this is nothing 
uioie than a big municipality. 

Is a bill passed in the Houses of Parliament ? — it is the 
Governor-General who assents to it, or withholds assent 
in the Queen's name, or reserves it for her personal assent 
(Sects. .5', 50). Has a Provincial Legislature [>asbed a 



1883 

MoLSON 

r. 
Cii.\ri.E.\u. 

Paiiint'ixu, J. 









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Paiiincau, J. 



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864 



QUEBEC SUPERIOR COURT. 



law ? — the assent, the withholding assent and the reserva- 
tion, are no longer in the name of the Queen, but of the 
Governor- General and by the Lieutenant-Governor (Sect. 
90). 

The legislative powers are distributed sc .a to give the 
general and undefined powers in very comprehensive 
teruis to the Parliament of Canada ; on the other hand, 
the powers left to the Provincial Legislatures are special 
and in terms much less comprehensive (Sects. 91, 92). 

Finally, when the Imperial Act deals with what is to be 
doiie by the Lieutenant-Governor, the name of Her Ma- 
jesty appears only twice — namely, for the original appoint- 
ment of legislative councillors, and the tilling of vacancies 
(sects. 72, 75), and the summoning of the Legislatures, 
which the Lieutenant-Governor does in the name of Her 
Majesty (sect. 82). It is said this must be by accident, 
and this supposition is based on the fact that these 
expressions are applicable only to the Provinces of Ontario 
and Quebec. As regards the summoning of the Legis- 
latures for Nova Scotia and New Brunswick, it is not so. 

It follows, then, from all this, says the plaintiff, that 
Her Majesty, not forming part of the Provincial Legis- 
latures, and the Act not having conferred on the Lieuten- 
ant-Governor the prerogatives of Her Majesty in express 
terms, they remain undiminished in the person of Her 
Majesty and cannot be exercised by the Lieutenant-Gov- 
ernors ; the members of the Provincial Executive Council 
cannot call themselves representatives of Her Majesty, 
and as such, not under the jurisdiction of this Court. 

The plaintiff admits that the defendant, Chapleau, took 
[224] his first proceeding in expropriation in the name of 
Her Majesty, but he asserts that this was done wrongfully, 
and he rightly adds that it is not enough for a person to 
call himself a i epresentative of Her Majesty to make 
him so in reality. 



y... 



QUEBEC SUPERIOR COURT. 



365 



1883 



Let us consider the first reason of the plaintift". The 
<iefendants, Chapleau and Lynch, are not sued personally, moison 
but as commissioners. Personally they have no interest chapLeai. 
in the case. Their character of commissioners implies a ipj^j,"^,, j 
principal in whose name they act. If this principal is 
the Queen, she cannot be sued before this tribunal. If, on 
the contrary, the principal is a private person, private 
persons can only have judgment entered against them 
in their own names, except in the cases expressly 
provided by law. If they ai'c a corporation it can only be 
a political corporation, for they form part of the executive 
government ; they are the counsellors of Her Majesty, 
and then they are governed by the general law and can- 
not be brought before this tribunal, except in the cases 
expressly provided by the law. 

The second reason is that the Queen does not form part 
of the executive government or of the Provincial Legis- 
latures, from which** she has evidently withdrawn, look- 
ing at the B. N. A. Act, 1867, as a whole ; that the Lieu 
tenant-Governor does not represent her, but represents 
the Governor-General, and the Ministers of the Lieuten- 
ant-Governor are not representatives of the Queen. 

It has been properly said that the Queen cannot sur- 
render any of her prerogatives, except by a law and in 
express terms. In like manner, and more properly, it may 
he said that the Queen cannot cease to be the personitica- 
tion of the sovereign authority in any part of the empire 
without a law of the Imperial Parliament, or an agreement 
in express terms to that effect. For, from the nionient 
when it is no longer she who personifies the sovereign 
authority in every Province of the empire, that Province 
is no longer an integral part of that empire. Now, \f 
the Queen has withdrawn, by the federal compact, both 
from the legislature and the executive of the Piovinces, 
and if the Lieutenant-Governors are not her representa- 



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1883 

MOI-SON 

r. 
Chai'm:au. 

Paiiine.'iu, J. 



306 



QUEUEC SUPERIOR COURT. 



j; I 
I' i 



tives, and do not exercise iu her name and in her stead the 
authority which they exercise, those Provinces are no 
longer integral parts of the empire. The powers granted 
to the Provincial Legislatures are granted to them to 
the exclusion of the Federal Parliament. It is the same 
with the executive power. A certain number of these 
powers are rights of sovereignty, which can only be exer- 
cised by the Sovereign, or by her representatives in her 
name. Such are legislation over property and civil rights, 
the administration of justice, the constitution of the 
Courts, as well civil as criminal, etc. Either the Lieuten- 
ant-Governors and legislators act in their own name (then 
they are independent of Her Majesty), or they do so in 
the name of Her Majesty, and then they are her repre- 
sentatives. 

If it is right to say that Her ^lajesty, in person, does 
not form part of the Provincial Legislatures and the 
Provincial Governments, it is equally right to say that 
she forms part of them by representation. For she can- 
not cease to form part of them, personally or by represen- 
tation, without ceasing to be Sovereign of these Provinces. 
The representatives of the Sovei-eign cannot be brought 
before the Courts any more than she herself can, except 
when and as she allows. It is not by inadvertence that 
the law directs the Lieutenant-Governor to choose the 
legislative councillors and to summon the assemblies in 
the name of Her Majesty. This is in accordance with 
the very nature of the English constitution, of which ours 
are only copies. 

But, says the plaintiff, I have been proceeded against 
by the Hon. J. A. Chapleau ; the proceeding commenced 
against me Is irregular ; I have the right to have it so 
declared ; I summon in mj' turn those who have com- 
menced proceedings against me, and under the same 
names and descriptions ; I do nothing more than continue 



QUEBEC SI PERIOR COURT. 



367 



the proceeding alread}- begun. This i.s true up to a certain 
point ; but it must not be forgotten that, if the sovereign 
authority has the right to act against private persons in 
all the ways known for individuals amongst themselves, 
these last cannot act against the sovereign authority 
except in the manner permitted by it". 

I use, intentionally, the words sovereign authority, 
because the same principles prevail, and ought to prevail, 
in all States, be they monarchical or democratic. 

The plaintiff has maintained that Canada is not a 
federation, but a union of Provinces into a single 
Dominion witli large municipalities springing out of it. 
The terms themselves of the preamble of the Act demon- 
strate that, if there is a union, it is a federal union: 
" Whereas, the Provinces of Canada, Nova Scotia and 
New Brunswick, have expressed their desire to be 
federally united," etc. Her Majesty and her Parliament 
have passed the Act of 18G7 to carr}' out this desire. 
The Provinces also have granted to the Dominion a large 
pait of the powers which belonged to them at the 
moment of union. But they have kept some powers 
which belong to them, to the exclusion of the Dominion 
which they have wished to form, and for which they have 
expressed the desire to contract their union. The 
Imperial Parliament onl}' acts to give effect to the con- 
tract, the conditions of which were settled in the confer- 
ences of the Provincial delegates. The Imperial Act is 
only the solemn contract establishing the articles agreed 
to by the Provinces in the conferences which preceded 
the confederation. It ought then to Ije interpreted 
without losing sight of this historical fact. 

The exception is allowed with costs. 

R. A. Raninay, for the plaintiff. 

De BeUefeaUle cO Bonin, for the defendants. 



1SS3 

Moi.SON 
V, 

Chapleac. 
P.apiiie.au, J, 



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368 



NOVA SCOTIA SUPREME COURT. 



NOVA SCOTIA SUPREME COURT— EQUITY. 
Murdoch v. Windsor & Annapolis Railway Co. 

[Re2)orted Russell's Equity Reports, 137.*] 
Bankruptcy cmd Insolvency — 57 Vict. c. IO4, N.S. 

An Act of tlie Nova Scotia Legislature for facilitating arrangements 
between Railway Compmies and their creditors, provided that 
a company might propose a scheme of arrangement between 
the company and its creditors and file the same in Court and 
that thereafter the Court might, on application by the company, 
restrain any action against the company on such terms as the 
Court might think fit. The Act also provided that no >ce of 
filing the scheme should be published, and that thereafter no 
execution, attachment, or other process against the property of 
the c mpany, should be available or be enforced without leave 
of the Court : 

Held, by Ritchie, J., that the above provisions related to bank- 
ruptcj' and insolvency, and were in excess of the powers vested 
in a Provincial Legislature (1). 

The plaintiffs had security on the undertaking of the 
defentlant company, future calls on shares and all tolls 
and money arising from the undei'taking for £200,000 as 
a firsE lien. Messrs. Roberts, Lubbock & Co., an English 
firm, had a lien on the rolling stock for £25,000, smd 
there were about £70,000 due to unsecured creditors. 
The defendants, under chapter 104 of the Acts of 1874 of 
the Legislature of Nova Scotia, entitled " An i^ct to facili- 
tate arrangements between Railway Companies and their 



•[This volume of Reports "is sup- 
posed to contain all the decisions 
delivered by Mr. Justice Ritchie, as 
Judge in Equity for the Province of 
Nova Scotia," during the years 1873- 
1882. In the report of this case, the 
date of the delivery of the judgment 



is not given. The nearest preceding 
case in which a date is given has the 
date 1877, and that date has, there- 
foi-e, been adoi)ted in the present 
report.] 

(1) [HeeiJe Windsor and Annapolis 
Rail wail, post p. 387.] 



Iiii.i 



NOVA SCOTIA SUPREME COURT. 



369 



Creditors," filed a scheme whereby preferential stock to 1877 
the extent of £75,000 was to be created, to be a first Murdoch 
charge on both the undertaking, calls, tolls, etc., and the Windsor & 
rolling stock, and this, or the money coming from it, was rai'lway Co. 
to be applied to the payment in full of Messrs. Roberts, statement. 
Lubbock & Co., and certain unsecured debts specified ; 
stock to the extent of £350,000 was then to be created, 
to be a subsequent charge on the undertaking, etc., and 
rolling stock, and was to be issued at |)ar to the exist- 
ing debenture holders in lieu of the debentures they then 
lield, which were to be delivered up to be cancelled [138], 
The plaintiffs obtained an order for the appointment of a 
receiver, which the defendants obtained a rule n isi to 
rescind. 

Ritchie, Equity Judge: — 

The plaintiff', on the 16th November last, obtained an 
order iiiVi for the appointment of a receiver, which was 
on the 28th December last, after argument, made abso- 
lute, and on the 2nd February last William Twining was 
appointed receiver to collect and receive the tolls and 
sums of money arising from the Windsor & Annapolis 
Railway Company, and to pay them over to the plaintiff* 
till the amount due him by the company on the mort- 
gage debentures, the subject of the suit, and his costs 
should be fully paid, with leave to apply to the Court 
for further directions, who, after having given the 
required security, entered upon the duties of the oflSce. 
On the 15th March last an application was made by 
Mr. Henry on behalf of the company, to rescind the order 
appointing Mr. Twining receiver, and to annul his 
appointment, and he obtained a rule nisi to that efi^ect, 
which was argued on the 29th March. The rule nisi 
was obtained on the affidavit of Mr. Henry that a scheme 
of arrangement between the company and their creditors 

24 




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370 



NOVA SCOTIA SUPREME COURT. 



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JUl -L. 



il'l 



1877 had been filed in the Supreme Court at Halifax on the 

AtimiKK'H 12th day of February last, notice of which had been 

WiNilsou & *luly published under and in compliance with the pro- 

IUi'kway'co. visions of an Act of the Province of Nova Scotia, entitled 

Ritciiie J " ^^^ Act to facilitate arrangements between Railway 

— Companies and their Creditors," (1) and it was further 
stated that he (Mr. Henry) had been informed by the 
secretary of the company in London, and fully believed, 
chat the scheme had been assented to by three- fourths in 
value of the creditors of the company. 

In shewing cause it was contended on the part of [139] 
the plaintitf'that the Legislature had exceeded its power 
in passing the Act referred to, as it dealt with a .subject 
over which the B. N, A. Act conferred on the Parliament 
of Canada exclusive power of legislation, bankruptcy 
and insolvency being among the enumerated classes of 
subjects with which that Parliament alone can deal ; and 
that this Act could be considered in no other light than 
as an Insolvent Act. It was also contended that if the 
Local Legislature had authority to pass the Act the 
scheme proposed was so unreasonable in its provisions 
that by merely filing it the plaintiff should not be 
restrained from obtaining the benefit of the judgment he 
had obtained and from his remedy fur the recovery of 
the debt due him by the company. It was also urged 
that the apjilication, if made at all, should have been 
made sooner. 

The following sections of the Act bear more particu- 
larly on the question involved, viz., the 2nd, 3rd, 4th 
and 5th : Sect. 2n(l, '' A company ma} propose a scheme 
of arratigement between the company and their creditors 
(with or without provisions for settling and defining any 



(1) See page 1 of the Acts of 1875, 
where this Act is placed as cap. 104 
of the Acts of 1874, having been 



reser>ed for the assent of the Gov- 
ernor-General. 



Int of the Gov- 



NOVA SCOTIA SUPREME COURT. 



371 



rights of shareholders of the company as among them- 1877 
selves, and for raising if necessary additional share and Murdoch 
loan of capital or either of them), and may file the same Windsor & 
in the court." Sect. 3rd, "After the filing of the scheme r1;^l''wI?co. 
the Court may, on the application of the company on ^i^^jJIJ^ j 

summons or motion, in a summary way, restrain any 

action against the company on such terms as the Court 
thinks fit." Sect. 4th, " Notice of filing of the scheme 
shall be published in the Gazette and in two other news- 
papers published in the City of Halifax." Sect. 5th, 
"After such publication of notice no execution, attach- 
ment, or other process against the property of the com- 
pany shall be available or be enforced without leave of 
the Court, to be obtained on summons or motion in a 
summary way." 

These provisions as well as the other provisions of the 
Act have been tianscribed from sections of the Imperial 
Statute, 30 &; 31 Vict. c. 127, but in transcribing the 
second section of the Nova Scotia Act from the sixth of 
the Imperial Act, with which in other respects it is 
identical, these words at the commencement of the sec- 
[140] tion are omitted : " Where a company ai'e unable to 
meet their engagements," and at the close of it [sect. 6 of 
the Imperial Act] the company is required to file a 
declaration in writing that it is unable to meet its 
engagements, with an aflidavit of the truth of such 
declaration. 

Had these words been transcribed into the Act in 
question it would have appeared on the face of it that it 
treated of a subject over which the Provincial Parliament 
had no power of legislation, and it would doubtless have 
been rejected as ultra vires. It is of little importance, 
however, whether an Act does or does not profess in 
terms to deal with insolvency ; the question is, does it in 
fact deal with that subject ? If power is taken from 



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372 



NOVA SCOTIA SUPREME COURT. 








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i«77 creditors to pursue their ordinary legal remedies for the 

Ml'uimkh recovery of debts due them, whether by companies or firms 

WiNijiiou & "^' individuals, or they are compelled without their consent 

KKiLwl\^'cn. ^^ 8'^'^ ^''"® ^o their debtors, or to forego securities 

J.. "TT , which tliey hold, and postpone a priority of lien which 

— they possess to parties who may be willing to advance 
money to their debtors to meet pressing necessities, 
surely such legislation can only be predicated upon such 
debtors being unable to meet their liabilities, or in other 
words, being insolvent. That a company having become 
insolvent, in order to settle with all its creditors alike, 
should have the power of declaring itself such, and on 
such declaration the remedies of creditors should be sus- 
pended, is not unreasonable ; but that the Legislature 
should give to a company solvent and able to meet all its 
liabilities, the power of staying all proceedings against 
their creditors by merely proposing and filing a scheme 
of arrangement with them, would be incomprehensible. 
The legislation must have been based upon the assump- 
tion of the insolvency of the company ; the whole of the 
provisions of the Act can lead to no other conclasion ; and 
the company itself has so regarded it, for the scheme 
which they have filed is preceded by this recital, " and 
whereas the company are unable to meet their engage- 
ments with their creditors." 

But assiuning that validity is to be given to the Act^ 
yet, where an application is made to the Court to stay 
the proceedings of creditors, reference must be had to the 
terms of the scheme, for it could hardly have been con- 
tended that the application must necessarily be successful 
because a scheme, however unreasonable in its [141] 
character, had been filed. In any such scheme the 
various cla.sses of creditors must be fairly treated, and it 
should shew a reasonable prospect of providing for the 
ultimate payment of their claims. 






\-\\ 



< ' t 



NOVA SCOTIA SUPREME COURT. 



378 



IS 



[The learned Judge after considering the proposed 
scheme, the object of which was in his opinion to secure Munmcn 
as far as possible the other creditors of the company at win i won & 
the expense of the present debenture holders, proceeded :] k\^,^wIy Co 

Entertaining as I do a strong opinion that the Local ll^^^^, j 
Legislature in passing the Act exceeded its powers, and " 

that the scheme does not deal fairly with the present 
debenture holders, I cannot comply with the application 
which has been made on behalf of the company, and [142] 
must discharge the rule nisi with costs ; but as both the 
questions I have been considering will pro[)erly come 
before the whole Court in term, when it is possible a 
different view may be taken of them, T am disposed so 
far to modify the order appointing the receiver, as to 
direct him to pay the amount to be received by him to 
the Receiver-General of the Court, there to abide the 
further order of this Court if this course should be 
desired on the part of the company. 



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NOVA SCOTIA SUl'HEME COURT. 




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NOVA SCOTIA SUPREME C^OURT— KQUITY. 
1881* In r.K The Wallace Huestis Grey Stone Co. 

[Reported, RiisitelVa Equity Reports, 4^1*]. 

Bankruptcy and Insolvency — Windiiuj-up Act — Rev. Stat. N. S. {5th 

series) c. SO. 

By an Act oi tlio Legislature of Nova Scotia provision was made 
for the winding-up of companies in general, where a resolution 
to that effect was passed l)y the company, or where the Court 
80 ordered at the instance of a contributor, on its being made 
to appear that such order was just and equitable. The Act 
could be enforced although no debts were due by the company, 
but could not be called into operation by a creditor : 

Held, that the Act did not partake of the character of an insolvent 
law, and was within the legislative authority of a Provincial 
Legislature. 

Proceedings were taken under an Act of the Provincial 
Legislature to wind up the company, on the ground that 
it was heavly embarrassed, and could not extricate itself 
' without having recourse to the double liability of the 
shareholders. The Act of incorporation provided that 
transfers of shares should be valid and effectual for all pur- 
poses, from the time they were made and entered in the 
books of the company. 

Three of the shareholders claimed that they were not 
contributories, on the ground that certificates of stock 
were never accepted by them, but it appeared that the 



•[This volume of Reports "is 
supposed to contain all the decisions 
delivered by Mr. Justice Ritchie as 
Judge in Equity for the Province of 
Nova Scotia," during the years 1873- 
1882. In the report of this case the 



date of the delivery of the judgment 
is not given. The nearest preceding 
case, in which a date is given, has 
the date 1881, and that date has 
therefore been adopted in the pre- 
sent report.] 



Nova 8C0TIA SUl'HKMK ColMtT. 



37; 



certificates were issiiec* them by direction of the fdnner 1*^1 
stoelchoMera, from wliom they were transCerrcd, that this InRkThk 



jved of by the di 



and th 



Wall. 

UKSTiaCiBKT 

Stonk Co. 



iertiHcates 
were handed to the transferor and afterwards received 
by two of the transfereers, wiio were rci^dsu'red as "'"'^"'"''^ 
stockliolders in the company's books, and never repudi- 
ated the transaction. The third transferee was also 
registered, and was elected a din'ctor previous to his 
reitudiating the transaction, wliich ho did not do imtil 
after it became apparent that the affairs of the conii)any 
wee embarrassed. Another class of stocklioldei's clnini'Ml 
f(^ ' e exempt, on the ground that they liad surrentUiit'il 
their sliii res to tlie company. This surrender l.isd be'iii 
niaile and accepted by the conijiany, but the parties sui- 
ix'iidering knew that the afi'airs of the company were 
euibairassed, and it was with a view of escaping liabihty 
that the surrender was made (1). 



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RiTcM IK, Equity Judge: — 

Tlie application for the winding up of this company, is 
made on behalf of shareholders, on the ground that it has 
incurred heavy responsibilities, and that it is impossible 
to extricate itself from its present embarrassment and 
meet its liabilities, without having recourse on its mem- 
bers, under the double liability clause of the Act under 
wliich it is incorporated, and that any attempt to con- 
tinue its business would result in further loss. 

The oidy objections to the proceedings, w^hich have been 
taken, are made by certain persons who den^ their liabil- 
ity as contributories; who also insist that, though they 
shouU be held to be liable, the proceedings are invalid, 
inasmuch as the Act of the Provincial Legislature, under 
which they are taken, is unconstitutional and ultra vires, 

(1) [The statement is taken from the head note to the case as reported.] 






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37G 



NOVA SCtJTiA SUPKEMK COURT. 



1881 as dealing with insolvency, a suVject over which the 

In Rk Thk Dominion Legislature has alone the power of legislating. 

HuIstIsGrkt [462] As this last objection lies at the root of the 

Stone Co. matter, I shall consider it first. The Act does not in 

Ritchie, J. terms profess to deal witli insolvency, nor is it in its 

character an insolvent law. The object of such a law is 

to relieve honest debtors who are unable to pay their 

debts, and to make a fair distribution of their property 

among their creditors in discharge of their debts. 

The object of this Act is to wind up the affairs of com- 
panies in general, where a resolution to that effect has 
been passed by the company, or where the Court may so 
order it, as in the present case, on the application of a 
contributor, on its being made to appear that it is just and 
equitable that it should be done. This may take place 
though no debts whatever may be due by the company; 
and this Act, unlike the English Act on the same subject, 
cannot be called into operation by a creditor of the com- 
pany. Under the Act incorporating tliis company, its 
members are ma<le liable for double the amount of stock 
held by them. No more than the subscribed stock has 
been paid up, and there is nothing to lead to the infer- 
ence that the amounts for which the members are still 
liable will not be sufficient to pay all its indebtedness, 
rt is with the view of having these amounts collected and 
so applied, and thus avoiding insolvemiy, that these pro- 
ceedings have been taken. I think, therefore, that the 
Act under which they have been taken does not trench 
upon the legislative powers of the Dominion Parliament > 
so that those who rely on this ground alone, must be held 
to be contributories. 

[The remainder of the judgment is omitted, the same 
not having reference to the constitutional question.] 



NOVA SCOTIA SUPREME COURT. 



377 



r whicli the 



NOVA SCOTIA SUPREME COURT. 

Town of Windsor v. The Commercial Bank of 

Windsor. 

\Repo-ied 3 Russell and Geldert 4^0.] 

Taxation of Banks — B. N. A, Aci, s. 91, sub-s. 15. 

A Local Legislature has authority to enact a law imposing a tax 
on the Dominion notes held by a bank as a portion of its cash 
reserve under the Dominion Act relating to " Banks and 
Banking" (34 Vict. c. 5, s. 14). 

This was a case stated for the opinion of the Court in 
the follow:ng terms : — 

The parties hereto agree to submit the following case 
without pleadings to the Supreme Court at Halifax, for 
their decision thereon, and agree to be bound by the 
decision given herein, by the said Supreme Court. 

[4<21] The defendant Bank is doing business under the 
general Banking Act of the Dominion of Canada, and has 
its office, and does business in the Town of Windsor. 

The bank, in addition to real and other personal pro- 
perty held and owned by it, owns and holds notes of the 
Dominion of Canada to the amount of eleven thousand 
seven hundred and fifty-nine dollars, which notes are held 
as a portion of its cash reserve, as required by the Act 
relating to Banks and Banking. 

The assessors for the Town of Windsor have assessed 
the said bank the sum of twelve hundred and fifty 
dollars on real estata, fifteen hundred dollars on office 
furniture and safes, eighteen thousand two hundred and 



1882* 
Dec. IS. 






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'Present:— McDonald, Smith, James and Weathkrbk, J J. 



878 



NOVA SCOTIA SUPREME COURT. 



IS82 



Town- ok 

WiNnsoK 



♦ 



L 



forty-one dollars on specie held by the said bank, and, 

also, eleven thousand seven hundred and fifty-nine dollars 

on said Dominion of Canada notes, being the amount of 

^" B^nk''^'^' ^^^'^ notes so held by said bank, and the said bank has 

oi- Wmisou. ]jQQji rated the sum of three hundred and twenty-seven 

Statemknt. dollars and fifty cents for taxes thereon. 

The bank is willing to pay the taxes rated and assessed 
on it in respect of real estate, office furniture, and safes 
and specie held by it, viz. : the sum of two hundred and 
nine dollars and ninety-one cents, but refuses to pay the 
tax rated and assessed on said Dominion of Canada notes, 
viz. : the sura of one hundred and seventeen dollars and 
fifty-nine cents. 

The question for the opinion of the Court is, whether or 
not the said bank is liable to be so assessed for taxes on 
the Dominion of Canada notes so held by the said bank. 

If the Court decide that the bank is liable to be assessed 
on said Dominion of Canada notes, judgment to be 
entered against the defendant for the plaintiff for the sum 
of one hundred and seventeen dollars and fifty-nine cents, 
and costs, otherwise judgment to be entered for the defen- 
dant against the plaintiflf for costs. 

It is further agreed that this case shall not stay or 
^ interfere with the collection of rates and taxes asse.ssed 
and levied on other property held by the said bank, and 
the payment by the said bank of any tv\m or sums of 
money on account of its taxes shall not aflfect or prejudice 
this case. 

[422] The printed by-laws of the Town of Windsor 
may be referred to as if forming part of this case. 

E. W. DiMOCK, 

Warden, 
W. M. Christie, Atty.for Town of Windsor. 
Walter Lawson, Cashier, Com. Bank of Windsor. 
ArnREY Blanchard, Atfy. of Com. Bank of Windsor. 



NOVA SCOTIA SUPREME COURT, 



• 379 



The case was argued December 19th, 1881, by Grdhim, 
Q. C, on behalf of the Town of Windsor, and Rlghy, Q. C, 
on behalf of the Commercial Bank. 



1882 

Town of 
Windsor 

V. 

cojimkkciai. 
Bank 

OF WlNDSOK. 



Graham, Q. C. 

Under the B. N. A. Act, Dominion notes in the hands Statemknt 
of parties may be assessed. The first Act in reference to 
Dominion notes is the Act of 1868, page 40 ; the next is 
the Act of 1870, page 40; and the last, the Act of 1880, 
diopter 13. There are some other Acts, which are not 
i^ijiterial. The Banking Act is contained in Acts of 1871, 
cap. 5, sects. 11, 14. Under sect. 125 of the B. N. A. Act, 
no lands oi property belonging to the Dominion can be 
taxed. It cannot be said that these notes which the 
Dominion Government have exchanged for gold and other 
[423] things belong to the Dominion Government : Bank 
V. Supervisors (1). In this case United States notes were 
held exempt from taxation, but this was under a special 
Act to that effect, and it may be inferred from the case,